Madras High Court
Edwin Enrique … vs State By on 20 December, 2022
Author: P.Velmurugan
Bench: P.Velmurugan
Crl.A.No.426 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.12.2022
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.A.No.426 of 2020
Edwin Enrique … Appellant
Vs
State by
Intelligence Officer
Narcotic Control Bureau
Chennai Zonal Unit,
Chennai. … Respondent
Prayer: Criminal Appeal filed under Section 374(2) of Criminal
Procedure Code, against the conviction of the appellant made in
C.C.No.67 of 2015 dated 08.09.2020 by the 1st Additional Special Court
for Exclusive Trial NDPS Cases, Chennai.
For Petitioner : Mr.F.Camilus Selva
For Respondent : Mr.N.P.Kumar
Spl.Public Prosecutor for NCB cases
JUDEMENT
This Appeal has been filed by the appellant/ accused against the
order of conviction and sentence in C.C.No.67 of 2015 dated 08.09.2020
by the Ist Additional Special Court for Exclusive Trial of NDPS Cases,
Chennai.
https://www.mhc.tn.gov.in/judis
Page No.1/20
Crl.A.No.426 of 2020
2. The respondent/ police registered a case in R.R.No.10 of 2015 in
N.C.B.F. No.48/1/6/2015-NCB-MDS for the offences under Section 8(c)
read with 29, 8(c) read with 28, 8(c) read with 23(c) of NDPS Act, 1985,
and after investigation, they laid a charge sheet before the Special Court
since the offences are under the NDPS Act. The learned Special Judge
took the charge sheet on the file in C.C.No.67 of 2015 and framed
charges against the appellant for the offences under Sections 8(c) read
with 29, 8(c) read with 28, 8(c) read with 23(c) of NDPS Act, 1985
(hereinafter called as the 'Act')
3.The specific case of the prosecution is that on 22.06.2015 at
about 8.25 hours, at the arrival gate of Chennai Anna International
Airport, when the appellant was intercepted, he was found in illegal
possession of 2.350 kgs Cocaine. While traveling from Dubai to
Chennai, he imported the said contraband to India, in pursuance of the
conspiracy between himself and an unknown person, thereby the
appellant committed the offences under Sections 8(c) read with 29, 8(c)
read with 28, 8(c) read with 23(c) of the Act.
https://www.mhc.tn.gov.in/judis
Page No.2/20
Crl.A.No.426 of 2020
4.The Trial Court, after framing charges, in order to substantiate
the charges, during the trial, on the side of the prosecution, totally 5
witnesses were examined as PW1 to PW5 and 42 documents were
marked as Ex.P1 to Ex.P42, besides 5 material objects were marked.
5.On completion of examination of prosecution witnesses,
incriminating circumstances were culled out from the evidence of
prosecution witnesses and the appellant was questioned under Section 313
Cr.P.C. in which he denied the case as false and pleaded not guilty. On the
side of the defence no oral and documentary evidence was adduced and no
material object and documents were exhibited.
6.On conclusion of the trial, the Court below heard the arguments
advanced on either side and considering the materials, the appellant/
accused was convicted for the offences under Sections 8(c) read with 21(c)
and 8(c) read with 23(c) of the Act and acquitted him for the offences
under Sections 8(c) read with 28 and 8(c) read with 29. Aggrieved by the
same, the appellant is before this Court.
https://www.mhc.tn.gov.in/judis
Page No.3/20
Crl.A.No.426 of 2020
7. Learned counsel for the appellant/ accused submitted that the
learned Judge erroneously considered Section 114 of the Indian Evidence
Act. He further submitted that the fundamental basic principle of the
criminal jurisprudence is that the accused is presumed to be innocent
until the guilt of the accused is proved beyond all reasonable doubt.
Since the NDPS Act provides for the reversal burden, it does not mean
that the prosecution need not prove its case and it is for the accused to
prove his innocence. Still it is the bounden duty of the prosecution to
prove the foundational fact that the contraband was seized from the
accused and the accused was in possession of the same. If the
prosecution is able to prove the possession of the contraband, then it is
the duty of the accused to prove that the recovered contraband was not in
his conscious possession. In this case, the trial Court failed to apply the
fundamental jurisprudence and the basic principle of foundational fact
and erroneously convicted the appellant by invoking the presumption
clause. Therefore, the impugned judgment of conviction of the trial Court
is liable to be set aside.
8.Learned counsel for the appellant/ accused further submitted that
the prosecution has not proved that the appellant voluntarily surrendered
https://www.mhc.tn.gov.in/judis
Page No.4/20
Crl.A.No.426 of 2020
the goods and voluntarily declared that he was in illegal possession of
the contraband. In this case, Section 50 of the Act has been violated and
Section 43 of the Act has also not been complied with and that in this
case, the appellant is a foreign citizen and he neither knew English nor
Tamil and he knows only Spanish. Though the prosecution has recorded
the evidence through a Spanish translator, but, however, the said Spanish
translator was not examined on the side of the prosecution as a
prosecution witness. They have stated that he was not traceable.
Therefore, non-examination of the Spanish translator, who is said to have
translated the entire statement made by the appellant is fatal to the case
projected by the prosecution.
9.Further, the learned counsel for the appellant/ accused also
submitted that as there was no Spanish translator available, no translator
was examined. The said Spanish translator was an imaginary person.
Therefore, the prosecution could not produce the said Spanish translator
before the trial Court, while conducting trial to substantiate the
statements alleged to have been recorded from the appellant. He also
further submitted that Section 50 of the Act was not duly complied with
and Spanish translator was not present at the Airport during the relevant
https://www.mhc.tn.gov.in/judis
Page No.5/20
Crl.A.No.426 of 2020
point of time for translating the Spanish being spoken by the appellant in
English or in vernacular language.
10. Learned counsel for the appellant/ accused further contended
that the accused never voluntarily opened the bags M.O.2 by himself
containing the contraband and handed over the same to the NCB officials
and the trial Court failed to consider the same in favour of the appellant.
11.Further, the learned counsel for the appellant/ accused also
submitted that non compliance of the Section 50 of the Act would vitate
the case of the prosecution, if the search was not made in the presence of
a Gazetted Officer or by nearby learned Magistrate, even though, the
accused waives his rights available to him and the contraband was
recovered from the package. Further, he also submitted that the statement
of the appellant recorded by PW1 is not voluntary in nature, as he was
subjected to ill-treatment by PW1 and it was prepared by him under his
illegal custody and the signatures of the appellant was obtained by force.
12.Learned counsel for the appellant/ accused submitted that the
appellant is foreign national and he was remanded to judicial custody,
https://www.mhc.tn.gov.in/judis
Page No.6/20
Crl.A.No.426 of 2020
who does not know even the regional language of Tamil or English for
proper communication and has no means to engage an Advocate of his
choice. He was also not timely provided with legal assistance by the
Columbian Embassy for retracting his earlier statement. The appellant/
accused was intercepted by PW1 in Anna International Airport and the
appellant should have been remanded before the nearest jurisdictional
Magistrate at Alandur, where the entire Mahazar proceedings were said
to have been completed by 12.30 p.m. at the Anna International Airport
itself, through the laptop and printer carried by PW1, whereas, he was
remanded before the learned Judicial Magistrate only on 23.06.2015 at
about 3.30 p.m. after being detained illegally on the face of the record
and once they complete the procedures at Anna International Airport
itself, there is no necessity to bring the appellant to the office of the
respondent, which creates doubts that the prosecution had not recovered
the contraband in the Airport and they have not completed the procedures
at the Airport at the time of interception itself. Only after taking the
appellant to the office of the respondent, they forcefully obtained the
signatures and they violated the mandatory provisions of the NDPS Act
and also the Constitution of India.
https://www.mhc.tn.gov.in/judis
Page No.7/20
Crl.A.No.426 of 2020
13.Lastly, the learned counsel for the appellant/ accused submitted
that from the very same material evidence, the appellant was acquitted
for the offences under Sections 8(c) read with 28 and 29, but erroneously
he was convicted for the offences under Sections 8(c) read with 21(c)
and 8(c) read with 23(c) which is liable to be set aside. Therefore, for the
reasons stated above, the appeal may be allowed and the impugned
judgment of conviction passed by the trial Court is liable to be set aside.
14.Learned Special Public Prosecutor appearing for the respondent
submitted that the appellant is a foreign citizen and he travelled from
Dubai to Chennai by concealing 2.350 Kgs of Cocaine. On 22.06.2015 at
8.25 hrs at the arrival gate of Chennai Anna International Airport, the
appellant was intercepted by the respondent as he was found in illegal
possession of 2.350 kgs of cocaine, in pursuance of the conspiracy
between himself and an unknown person and a case was registered
against the appellant/ accused. Further, he also submitted that on
receiving secrete information, they went to the Anna International
Airport, Chennai and the appellant came from Dubai and when he was
intercepted, he was found in illegal possession of the contraband.
https://www.mhc.tn.gov.in/judis
Page No.8/20
Crl.A.No.426 of 2020
15. Further, the learned Special Public Prosecutor submitted that
PW1 moved the accused to a separate room adjacent to the Customs
arrival area in the Airport, where he opened his trolley bag and took out
22 packets of Pelikar Marcator 418 of permanent marker and informed
that Cocaine is concealed in the said marker pens. On opening, PW1
found 21 packets containing 10 marker pens each and one packet
contained 9 marker pens. PW1 removed the back cap and found some
materials stuffed inside, wrapped with black colour paper. On removing
black colour paper, it was found again wrapped with a silver foil. On
removing silver foil, PW1 found white colour powder. When PW1 tested
the same with the Field Detection Kit, it was tested positive for Cocaine.
All the pens were tested similarly and their contents also tested positive
for Cocaine. PW1 had put all the powder in a white colour polythene
bags and they weighed 2.350 kgs. PW1 drew 2 samples each 5 gms,
sealed with NCB seal No.11 and named them as S1 and S2. He packed
the bulk and named it as P1. Thereafter, the wrapped materials were kept
in the trolley bag and he marked it as P2. The appellant voluntarily
handed over his travel documents, US dollars, Columbian currency,
which were kept in a plastic bag and it was named as P3. PW1 prepared
https://www.mhc.tn.gov.in/judis
Page No.9/20
Crl.A.No.426 of 2020
Ex.P3/ Mahazar and Ex.P4/ test memo in triplicate on the spot. The
Dollars and Currency recovered from the accused were deposited with
the RBI under a challan as per the order of the Special Court.
16.After completing the formalities the prosecution laid a charge
sheet. Though the trial Court found that the respondent/ police did not
prove their case for the offence under Sections 8(c) read with 28 & 29,
however, the appellant/ accused was found guilty of the offence under
Sections 8(c) read with 21(c) and 8(c) read with Section 23(c). Since, the
contraband was not recovered from the body of the appellant, it was
recovered from the trolley bag, which was voluntarily handed over by the
appellant, there is no violation of Section 50 of the Act. The appellant
was not brought before either the Gazatted Officer or a learned
Magistrate. If the goods are recovered from the body of the accused, then
only Section 50 of the Act has to be strictly complied with, whereas, in
this case, admittedly, all the contraband were recovered from the marker
pens, concealed in the bags.
17. PW1 completed all the formalities as contemplated under the
Act and there was no violation and further, the appellant knows and
https://www.mhc.tn.gov.in/judis
Page No.10/20
Crl.A.No.426 of 2020
understands, English. Since he was not fluent in English, Spanish
translator was provided and with the help of the Spanish translator,
procedures were followed and completed as contemplated under the Act.
However, since the translator could not be traced out, during the trial, he
could not be examined as prosecution witness. However, the appellant
understood English and there was no violation and the trial Court even
though acquitted him of the two charges namely 8(c) readi with Sections
28 and 29 of the Act. Since, the chain of the concealment of the
contrabands from Dubai to Chennai were not proved, the prosecution has
proved the illegal possession of the contraband at the time of the
inspection. Therefore, it is for the appellant to rebut the presumption that
he was not in conscious possession. Since, the appellant had not rebutted
the presumption that he is innocent, the trial Court rightly drawn the
presumption that he was in conscious possession. Hence, it is for the
appellant to prove that he is innocent and that he was not in conscious
possession of the concealed items under the NDPS Act or he has
possessed valid documents for carrying the contraband. Therefore, there
is no merit in the appeal and the same is liable to be dismissed.
https://www.mhc.tn.gov.in/judis
Page No.11/20
Crl.A.No.426 of 2020
18.Heard the arguments advanced by the learned counsel
appearing on either side and perused the materials available on record.
19. From all the materials, the Passport and the other travel
documents, it is clearly proved that the appellant was travelling from
Dubai to Chennai and on 22.06.2015 at 8.25 hrs, at the arrival gate of the
Chennai Anna International Airport, the accused was intercepted and he
was found with illegal possession of 2.350kgs of Cocaine. Then, as per
the evidence of PW1, he completed all the formalities in the manner
known to law. Further, he has clearly stated that on 22.06.2015 he
received secret information through office Telephone that one Edwin
Enrique (appellant herein) was coming to Chennai by Emirates Flight
No.FK544 at 8.25 hrs by carrying 2.5 kgs of Cocaine from Dubai. He
reduced the same into writing and submitted Ex.P1 information to his
immediate superior ie.PW2.
20. As per the instructions of his superior, PW1 formed a team and
proceeded to the Airport. PW1 procured Palani and Vivek, the staff of Air
India to be witnesses for search to be conducted. PW1 identified the
accused/ appellant herein. In the Customs arrival hall, his Passport was
https://www.mhc.tn.gov.in/judis
Page No.12/20
Crl.A.No.426 of 2020
recovered and since he was not conversant in English, PW1 arranged for
a translator Mr.Joaquin Plana from the Institute of Hipanio, Chennai.
When PW1 explained the rights of the appellant under Section 50 of the
Act to him in Spanish language through the translator, the appellant
replied that he can be searched by PW1 himself. Further, PW1 moved
him to separate room adjacent to the Customs arrival, where the appellant
opened his trolley bag and took out 22 packets Pelikar Marcator, 418
permanent markers and confessed that Cocaine is concealed in the said
marker pens. When PW1 opened the trolley bag, 21 packets containing
10 marker pens each in one packet containing 9 market pens were found.
When he removed the back cap, some materials were stuffed inside,
wrapped with black colour paper. On removing the same, it was found
again wrapped with silver foil. On removing the same, PW1 found white
colour powder. While he examined the same with Field Detection Kit, it
tested positive for Cocaine. All the pens were tested in a similar manner
and all the other contents were recovered from the other pens also tested
positive for Cocaine and he had put the powder in white colour
polythene bags and weighed 2.350 kgs and PW1 prepared a Mahazar and
through Mahazar, he recovered the same and also took the sample and
https://www.mhc.tn.gov.in/judis
Page No.13/20
Crl.A.No.426 of 2020
sent it to the Court concerned. He also recovered currency and US dollars
and the same were deposited with Reserve Bank of India.
21.Subsequently, after completing all formalities, PW1 submitted a
report before the Investigating Officer and a case was registered against
the appellant/ accused. Therefore, from the evidence of PW1, it is proved
that the contraband was recovered from the appellant. The same was
recovered not from the body of the appellant but concealed in the marker
pens and therefore, there is no violation of Section 50 of the NDPS Act.
Soon after receiving the information, which was reduced into writing,
which has been marked as Ex.P1, also clearly shows that there is no
violation of Section 43 of NDPS Act. The statement recorded by the
Intelligence Officer under Section 67 of the Act is not admissible in
evidence. However, on the date of the delivering of the judgment by the
trial Court, since it was admissible, the trial Court has considered the
statement and at present, any statement recorded by the Intelligence
Officer under Section 67 of the Act is not admissible in evidence. It is a
settled proposition of law that, subsequent to the judgment of the Hon'ble
Supreme Court in the case of Tofan singh Vs State of Tamil Nadu
reported in (2021) 4 SCC , if at all the Court found that the conviction is
https://www.mhc.tn.gov.in/judis
Page No.14/20
Crl.A.No.426 of 2020
only based on the report, or the confession statement recorded under
Section 67 of the Act, then the conviction should go, whereas, in this
case, the prosecution is able to prove its case and apart from the
statement under Section 67 of the Act, the prosecution proved its case
beyond reasonable doubt that the appellant travelled from Dubai to
chennai. While arriving at Chennai, he was intercepted based on a secret
information already received by the respondent/ police and the
contraband was recovered from him in the presence of the independent
witness and the same was tested positive.
22.Therefore, the only objection on the defence is that the
appellant does not know English and all the statements were said to have
been recorded through a Spanish translator, but, he was not subsequently,
examined by the prosecution during the trial to substantiate those
statements. The prosecution has explained that, since they could not trace
out the Spanish translator, they could not examine him. Even otherwise,
on a perusal of the entire records, it could be deduced that though the
appellant did not know English, Tamil or any other Indian languages, he
could not have travelled from Dubai to Chennai.
https://www.mhc.tn.gov.in/judis
Page No.15/20
Crl.A.No.426 of 2020
23.Further, the entire material shows that the charges were
translated by the translator and the questioning of incriminating
circumstances under Section 313 Cr.P.C. were also translated by the
translator and the questioning of sentence by the trial Court was also
translated to him. Therefore, the appellant participated in the trial and he
was given an opportunity to understand all the charges and also the trial
proceedings. The fact remains that the prosecution proved that the
contraband was recovered from the appellant and the same was sent to
the Forensic Lab for getting opinion and the opinion was also given as
“positive”. Even preliminary kit test report also shows that it is positive.
Subsequently, the Lab report also proved the same. Even, when the
appellant/ accused was produced before the learned Judicial Magistrate,
Ambattur for remand, at the time also, the accused was provided a
translator to explain all the procedures. The appellant was given an
opportunity at every moment and he understood all the proceedings.
Thus, the prosecution proved that the contraband was recovered only
from the appellant beyond the reasonable doubt and when once the
recovery is proved and the contraband is a Cocaine which is prohibited
one in the Schedule of Act and the same had been recovered, then the
https://www.mhc.tn.gov.in/judis
Page No.16/20
Crl.A.No.426 of 2020
reversal burden is upon the accused and he has to rebut the presumption
as to how the contraband came to his possession and whether he was
having sufficient documents to have such a possession with him.
Therefore, a combined reading of the evidence of PWs 1 to 4 and also
Exs.P5 to P18 and from the oral and documentary evidence of
prosecution witnesses, this Court being the Appellate Court, as a final
Court of fact finding, finds that the travel of the appellant from Dubai to
Chennai was proved and at the Chennai Airport, recovery of the
contraband was proved and the recovered contraband was only substance
of Cocaine which was also proved and the same was prohibited under the
NDPS Act. The appellant was in conscious possession of the contraband.
Therefore, when once the prosecution had proved that the appellant was
in conscious possession of the contraband, it is clear that the prosecution
has proved its case beyond all reasonable doubts and the appellant has
not rebutted the presumption. Therefore, apart from Section 67 of the
Act, the voluntary statement made by the appellant was also recorded by
the Intelligence Officer and the evidence of Pws.1 to 4 and Exs.1 to 10
and P37 establish it. The prosecution proved that the appellant smuggled
cocaine by concealing it into 21 packets containing 10 marker pens and
https://www.mhc.tn.gov.in/judis
Page No.17/20
Crl.A.No.426 of 2020
each packet contained 9 marker pens and the same were kept in a travel
bag and the contraband was not recovered from the body of the person, it
was recovered from the bag which was in the possession of the appellant
and the appellant has not revealed the name of the contraband to any
other persons, if at all. It is stated by the learned counsel for the appellant
that the appellant was subjected to harassment or mishandled, they could
have obtained the name of the person who induced the appellant to bring
Cocaine from Dubai to Chennai. But the case is registered only against
the appellant and other persons are shown as unknown persons only.
24.Under the above circumstances, this Court does not find any
merit in this appeal. This Court finds that the respondent/ prosecution has
proved their case and since the possession and recovery were proved, the
appellant has not rebutted the presumption in the manner known to law.
Therefore, there are no merits in the appeal and the appeal is liable to be
dismissed. Since the recovered contraband is a commercial quantity, the
trial Court has imposed a minimum sentence of 10 years and minimum
fine of Rs.1,00,000/- There are no mitigating circumstances to award
lesser sentence of imprisonment and fine.
https://www.mhc.tn.gov.in/judis
Page No.18/20
Crl.A.No.426 of 2020
25.The appeal is dismissed confirming the conviction and sentence
imposed by the Court below. The appellant/ accused shall undergo the
remaining period of sentence, if any. The period of imprisonment already
undergone by the accused, shall be set off under Section 428 Cr.P.C.
20.12.2022
Index: Yes/ No
Speaking Order : Yes/ No
Neutral Citation: Yes/ No
gba
To
1.The Intelligence Officer,
Narcotics Control Bureau,
Chennai Zonal Unit,
Chennai.
(NCB F.No.48/1/01/2016-NCB-MDS)
2.The Special Public Prosecutor,
NCB Cases (NDPS),
High Court, Madras.
https://www.mhc.tn.gov.in/judis
Page No.19/20
Crl.A.No.426 of 2020
P.VELMURUGAN,J.
gba Crl.A.No.426 of 2020 20.12.2022 https://www.mhc.tn.gov.in/judis Page No.20/20