Madras High Court
V.Ravikumar @ Ravi @ Master @ vs / on 27 July, 2022
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.A.No.830 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 12.07.2022 Pronounced on : 27.07.2022
Coram::
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
Crl.A.No.830 of 2018
1. V.Ravikumar @ Ravi @ Master @
Hubli Ravi @ Ravipaul @ Gubili Ravi, M/A 56 years,
S/o.Venkatesh @ Gubili Venkatesh.
2. R.Malini @ Malini Paul @ A.B.Malini, F/A 57 years,
W/o.V.Ravikumar @ Ravi @ Master @
Hubli Ravi @ Ravipaul @ Gubili Ravi
both the appellants residing at
Door No.10, 8th Cross Street,
Thendral Nagar, Gopalapuram,
Pattabiram,
Chennai – 600 072. ... Appellants/Accused 1 & 2
/versus/
The Intelligence Officer,
Narcotic Control Bureau (NCB),
Chennai Zonal Unit,
Chennai. ... Respondent/Complainant
Prayer: Criminal Appeal is filed under Section 374 of Cr.P.C., to set aside the
judgment dated 03.10.2018 made in C.C.No.47 of 2012 passed by the Learned I
Additional Special Court for exclusive trial of cases under NDPS Act, Chennai.
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Page No.1/17
https://www.mhc.tn.gov.in/judis
Crl.A.No.830 of 2018
For Appellants : Mr.R.C.Paul Kanagaraj
For Respondent : Mr.N.P.Kumar,
Special Public Prosecutor (NCB) cases
***
JUDGMENT
The appellants are husband and wife, on 09.05.2012, based on specific information received by Mr.R.Saravanaraj, Intelligence Officer, NCB, Chennai, they were intercepted at Koyambedu bus terminus, Chennai at around 21.30 hours when they were about to board the bus to Madurai. Three packets suspected to be heroin concealed in back colour rexine bag under the personal belongings was recovered from A1. One packet suspected to heroin was recovered from the hand bag carried by A2. In the presence of witnesses, two samples from each packet was drawn. From the field test, the powder answered presence of diacetyl morphine (heroin).
2. After removing the packing material, three packets of heroin powder found in possession of A1 was weighed and it was 0.994 kg, 0.820 kg, and 0.994kg respectively. The packet recovered from A2 weighed at 0.498 grams. In their confession statement, the accused revealed that the contraband was handed over to _____________ Page No.2/17 https://www.mhc.tn.gov.in/judis Crl.A.No.830 of 2018 A1 by the agent of one Bagirath of Rajasthan on the instructions of Munavar @ Noorudeen Kamal, a resident of Srilanka. As per his instruction, the contraband supposed to be delivered to one Farooq Nana, Madurai and he, in turn will clandestinely transport it to Srilanka and hand over to Munavar @ Noorudeen Kamal. For the said assignment Rs.20,000/- per packet in addition to the travelling expenses was agreed to be paid.
3. Based on the information given by the accused, the places where contraband was packed searched and incriminating documents were recovered from Plot No.12, Gopalapuram, Pattabiram, Chennai, were Ravikumar, son of the accused staying. The other place where the elder son of the accused was residing did not yield any incriminating material during the search. The contraband drawn from the four packets were sent to chemical analysis and the Lab test report reveal presence of diacetyl morphine (Heroin). Hence, based on evidence collected in the investigation, a complaint by the Intelligence Officer, NCB, South Zone, Chennai, was laid before the Special Court for NDPS cases.
4. The charges under Section 8(c) read with Sections 29, 21(c) and 28 _____________ Page No.3/17 https://www.mhc.tn.gov.in/judis Crl.A.No.830 of 2018 of NDPS Act was framed against A1 & A2.
5. To prove the charges, the prosecution has examined 17 witnesses, marked 170 exhibits and 18 material objects were marked.
6. The trial Court, on completion of trial found both A1 & A2 guilty of the charges tried. Since there was representation from the Intelligence Officer that A1 was convicted for similar offence earlier and sentenced to undergo 3 years R.I and sought for enhanced punishment for A1 in view of Section 31 of NDPS Act, charge under Section 31 of NDPS Act was framed against A1 and questioned. Thereafter, following sentence was imposed on the accused.
A-1/V.Ravikumar:
Found guilty of offence punishable under Section 8(c) r/w 29, 21 (c) and 28 r/w 31 of NDPS Act sentenced to undergo 16 years R.I and to pay fine of Rs.2 lakhs for each of the offences, in default to pay the fine to undergo R.I for one year for each of the offences.
A-2/R.Malini:
_____________ Page No.4/17 https://www.mhc.tn.gov.in/judis Crl.A.No.830 of 2018 Found guilty of offence punishable under Section 8 (c) r/w 29, 21(c) and 28 of NDPS Act sentenced to undergo 10 years R.I and to pay fine of Rs.1 lakh for each of the offences, in default to undergo one year R.I for each offences.
7. The period of sentence ordered to run concurrently and the sentence already undergone ordered to be set off.
8. As a result, A1 was sentenced to undergo 16 years R.I and to pay fine of Rs.6 lakhs, in default to undergo one year R.I for each offence. In other words, the default sentence of three years R.I imposed. As far as A2 is concerned, sentenced to undergo 10 years R.I and to pay fine of Rs.3,00,000/- in default one year R.I. In other words, the default sentence of three years R.I imposed.
9. Aggrieved by the conviction and sentence imposed by the trial Court in C.C.No.47 of 2012 dated 03.10.2018 (conviction) and 28.10.2018 (sentence), the present appeal is filed.
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10. The Learned Counsel appearing for the appellant submitted that there was gross violation of the mandatory provision laid in the NDPS Act. Since, section 50 of NDPS Act, was not complied in true scene while conducting search. The trial Court judgment has to be set aside. It was submitted that the complaint indicates conspiracy between 5 persons at various places from Rajasthan to Srilanka, except the appellants herein, the other accused were not secured. No evidence placed to prove the said conspiracy. Based on the alleged confession statement recorded by the Investigating Officer, the trial Court believing the words of the Officers attached to respondent department has convicted the accused/appellants over looking the fact that, the said confession was recorded after issuance of summons marked as Ex.P.3 & Ex.P.4 directing them to appear before the Investigating Officer at odd hours on 10.05.2012. The alleged information about illegal transport of heroin, which is marked as (Ex.P.23) does not point out the involvement of A1 with knowledge. Therefore, prayed for interference of the trial Court judgment of conviction and sentence.
11. Per contra, the Learned Special Public Prosecutor for the NCB cases submitted that, the entire operation commenced based on the information _____________ Page No.6/17 https://www.mhc.tn.gov.in/judis Crl.A.No.830 of 2018 received by P.W.7 (Mr.R.Saravanaraj), Intelligence Officer, NCB, Chennai, who duly reduced the information into writing as per the mandate of Section 42 (2) of NDPS Act and place it before Superintendent, NCB, who is the immediate superior. On perusing the information Mr.Rakesh Kumar, [P.W.14], Superintendent, NCB Chennai, had seen the information and directed P.W.7 Mr.R.Saravanaraj, to take necessary action as discussed and the team shall consist of a lady sepoy by name Ms.Devia Rani. Accordingly, the team headed by P.W.1 along with Ms.Devia Rani, went to Koyambedu bus stand on 09.05.2012. They mounted surveillance from 9 o'clock and intercepted the accused persons at around 9.15 hrs. After disclosing their identity, the search was conducted after informing the accused persons about their rights under Section 50 of NDPS Act. Three packets of heroin was recovered from the rexine bag carried by A1 and one packet of heroin was recovered from the hand bag carried by A2. The seizure has been narrated in the mahazar marked as Ex.P.1. In which, both the accused have signed along with to independent witnesses Mr.N.Manikavasagam (P.W.9) and Mr.Pushparaj (P.W.10). On the contraband four packets seized and the samples drawn both the accused have signed. One set of samples was sent to chemical analysis. The report of chemical examiner had confirmed the presence of diacetyl morphine heroin from _____________ Page No.7/17 https://www.mhc.tn.gov.in/judis Crl.A.No.830 of 2018 the contraband seized from the accused persons. Having proved beyond doubt about their possession and knowledge, the trial Court has rightly convicted them for offence under Section 8(c) r/w 29, 21(c) and 28 of NDPS Act.
12. As far as A1 is concerned, he was convicted for similar offence in C.C.No.30 of 2005 and convicted to undergo three years 3 R.I and to pay fine of Rs.11,000/- since subsequent offence of similar nature and the punishment prescribed was minimum 10 years R.I and fine of Rs.1 lakh, charge under Section 31 of NDPS Act, was framed. After considering his plea, the sentence of 16 year R.I and Rs.2 lakh fine was imposed. Therefore, submitted that, there was error either in conviction or sentenced imposed.
13. Heard the Learned counsel appearing for the appellants and the Learned Special Public Prosecutor for the respondent.
14. According to the prosecution, A1 came in contact with one Munavar @ Noorudeen Kamal while he was serving his imprisonment in the prison during his earliest term of conviction in C.C.No.30 of 2005. Later, in the year 2011, _____________ Page No.8/17 https://www.mhc.tn.gov.in/judis Crl.A.No.830 of 2018 the said Munavar @ Noorudeen Kamal contacted him and engaged him in transporting heroin from Rajasthan to Srilanka. Pursuant to the said conspiracy, about 3 kgs of heroin was arranged to be transported. Accordingly, 1st appellant received it at Chennai through a carrier. On receiving the contraband, 1st appellant packed it into four packets and waited for instructions from Munavar @ Noorudeen Kamal. On 08.05.2014, A4 [Farooq Nana] met him at a Dharga near Mount Road and instructed him to bring the contraband to Madurai and hand over it to him on the next day. Accordingly, A1 and his wife A2 at around 9.00 p.m., came to Koyambedu bus stand, to board the bus to Madurai with intention to handover the contraband to A4, who suppose to transport it to Srilanka and handover to Munavar @ Noorudeen Kamal. The said attempt got aborted when the sleuth of NCB intercepted A1 & A2 and recovered the contraband. Except these two accused, others three accused of the conspiracy team were shown as absconding accused and case against them was split up.
15. It is contended by the Learned Counsel for the appellants that, the theory of conspiracy projected by the prosecution not proved. Except the confession statement alleged to have been recorded by Investigating Officer, NCB, there is no _____________ Page No.9/17 https://www.mhc.tn.gov.in/judis Crl.A.No.830 of 2018 material to show that A2 had knowledge about the contraband present in her hand bag. Furthermore, the very recovery of contraband from the appellants is doubtful and vitiated by non-compliance of mandatory provision.
16. The Learned Counsel appearing for the appellants further submitted that, soon after the alleged recovery under mahazar (Ex.P.1), which started at 21.15hrs and completed at 00.30 hrs on 10.05.2012. The accused persons were served summons marked as Ex.P.3 & Ex.P.4 to appear before the Investigating Officer, NCB Office by 03.00 hours on that day. The document relied by the prosecution namely Ex.P.1, Ex.P.3 and Ex.P.4 will indicate that the accused persons were forcibly taken to NCB Office and documents were created and signatures of the accused were obtained in it by force without affording any fair opportunity for them to explain.
17. Further, the Learned counsel for the appellants submitted that, as far as A2 is concerned being a lady, the search of A2 ought to have been done in the manner prescribed under Section 50(4) of NDPS Act. The prosecution claim that, one Devika Rani, sepoy was present during search of A-2, but she was not _____________ Page No.10/17 https://www.mhc.tn.gov.in/judis Crl.A.No.830 of 2018 examined. The contraband alleged to have been recovered from the hand bag of A2 even prior to intimating the rights of the accused under Section 50 of NDPS Act to be searched before Gazetted Officer or Judicial Magistrate.
18. From the mahazar as well as evidence of P.W.1, who seized the contraband from A1 & A2, this Court finds that, on the prior information received and recorded (Ex.P.23) approval has been obtained from Superintendent (P.W.14), who entrusted the responsibility to P.W.2 of mounting surveillance and take necessary action. He, on intercepting A1 along with A2 had introduced himself and has informed the content of the information received by him about the accused. The 1st accused has voluntarily handed over the three packets of contraband of heroin concealed in his bag. Likewise, A2 has handover one packet of heroin. This has been narrated in the mahazar (Ex.P.1), after drawing samples, the contraband has been repacked and in the all the packets accused have signed. This contraband been forwarded to the godown immediately and later on to the Special Court with the requisition letter for forwarding the sample to chemical analysis.
19. Ex.P.23 is the information report recorded as per Section 42(2) of NDPS Act. The contrabands were seized not during the personal search of A1 or _____________ Page No.11/17 https://www.mhc.tn.gov.in/judis Crl.A.No.830 of 2018 A2 but from the suitcase and hand bag carried by them. Therefore, Section 50 of NDPS Act does not attract in this case. It is also seen from the documents marked that P.W.1 and P.W.2, who have involved in the search and arrest have forwarded full report under Section 57 of NDPS Act to the immediate superior and same is marked as Ex.P.5 and Ex.P.10. The report of the other officers are marked as Ex.P.37 and Ex.P.56 regarding the search conducted at the place of the accused under suspicion.
20. In the said circumstances, on appreciation of evidence, the trial Court has rightly held that the statutory presumption of guilt against the accused persons not been rebutted and they have voluntarily handing over of contraband by A2 to P.W.1 [Thayumanavan], which disclose her animus of possession, the prohibited contraband.
21. Therefore, this Court, on re-appreciation of the evidence and the documents relied by the prosecution does not find any error in the judgment of the trial Court holding the accused guilty of offence under Section 8(c) r/w 29, 21(c) and 28 of NDPS Act.
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22. As far as the sentence is concerned, what is imposed against A2 is the minimum sentence prescribed under the law for possessing heroin of commercial quantity. As far as A1 is concerned, considering the previous conviction, enhanced sentence of 16 years R.I and fine of Rs.2 lakhs has been imposed. The minimum sentence prescribed under Section 31 of NDPS Act for repeat offenders of same nature is minimum 15 years R.I and minimum fine of Rs.1,50,000/-.
23. It is contended by the Learned Counsel for the appellants that, the A1 was convicted for only three years R.I and fine of Rs.11,000/- and therefore, it cannot be construed as the subsequent conviction punishable under the Act with the same amount of punishment.
24. As far as this contention is concerned, the trial Court has rightly considered the expression used in the amended provision of Section 31 of NDPS Act, which has come into effect after 01.05.2014 and the previous un-amended Section 31 of NDPS Act which is applicable to the case in hand, since the commission of offence was prior to the amendment. In addition to his reasoning, to _____________ Page No.13/17 https://www.mhc.tn.gov.in/judis Crl.A.No.830 of 2018 add, the records indicates that, A1 earlier was charged under Section 8 (c) r/w 21(c), 28 & 29 of NDPS Act in C.C.No.30 of 2005 along with another accused, he has pleaded guilty. The Court taking note of the dictum laid in E.Micheal Raj vs. Intelligence Officer, Narcotic Contral Bureau reported in 2008 AIR SCW 2365, taken into account the actual content of diacetyl morphine and has held that the accused had in his possession only 'in between' quantity and not commercial quantity and therefore, sentenced him to undergo three years R.I with fine of Rs.11,000/-. The Hon'ble Supreme Court after the Notification of Government of India, clarifying the doubt regarding reckoning the weight of the contraband found in mixture, held the dictum of E.Micheal Raj case cited supra is no more good law.
25. In the said circumstances, the charge for which 1st accused faced the trial and the present charge are one and the same. Hence, under Section 31 of NDPS Act either pre-amendment or post-amendment, the punishment should be minimum 1½ time of the sentence prescribed for the 1st time offender. Therefore, this Court finds that, imposing sentence more than 1½ time of the minimum prescribed by the trial Court is not in contrary to law. _____________ Page No.14/17 https://www.mhc.tn.gov.in/judis Crl.A.No.830 of 2018
26. After considering the submissions made by the Learned Counsel for the appellants and the fact that, both husband and wife are in prison for more than 10 years and they are not financially capable of paying the fine amount, this Court is inclined to modify the default sentence alone while confirming the conviction and sentence imposed.
27. Accordingly, the default sentence for each offence which has been fixed as 1 year is reduced to two months. In the result, if the 1st appellant fails to pay fine of Rs.6,00,000/- (Rs.2,00,000/- x 3), he shall undergo default sentence of 2 months R.I for each default. Likewise, if the 2nd appellant fails to pay Rs.3,00,000/- (Rs.1,00,000/- x 3), she shall undergo default sentence of 2 months R.I for each default. The modified sentence is as below:-
Offence Sentence passed by the Modified Default
Courts below Sentence
A1 Section 8 (c) read with To undergo 16 years R.I and To undergo 16 years R.I
Sections 29, 21(c) and to pay fine of Rs.6 lakhs, in and to pay fine of Rs.6 28 r/w 31 of NDPS Act. default to pay the fine, to lakhs, in default to pay undergo three years R.I. the fine, to undergo 2 months R.I for each _____________ Page No.15/17 https://www.mhc.tn.gov.in/judis Crl.A.No.830 of 2018 Offence Sentence passed by the Modified Default Courts below Sentence default. (3 counts) A2 Section 8 (c) read with To undergo 10 years R.I and To undergo 10 years R.I Sections 29, 21(c) and to pay fine of Rs.3 lakhs, in and to pay fine of Rs.3 28 of NDPS Act. default to pay the fine, to lakhs, in default to pay undergo three year R.I. the fine, to undergo 2 months R.I for each default. (3 counts)
28. With the modifications in the default sentence, this Criminal Appeal is partly allowed, confirming the Trial Court judgment of conviction and sentence in other aspects.
27.07.2022
Index :Yes.
Internet :Yes.
Speaking order/Non-speaking order
bsm
To,
1. The I Additional Special Court for exclusive trial of cases under NDPS Act, Chennai.
2. The Special Public Prosecutor, High Court, Madras.
3. The Intelligence Officer, Narcotics Control Bureau (NCB), Chennai Zonal Unit, Chennai.
_____________ Page No.16/17 https://www.mhc.tn.gov.in/judis Crl.A.No.830 of 2018 Dr.G.JAYACHANDRAN,J.
bsm Pre-delivery judgment made in Crl.A.No.830 of 2018 27.07.2022 _____________ Page No.17/17 https://www.mhc.tn.gov.in/judis