Karnataka High Court
Intelligence Officer vs Shamoon Ahmed Syed @ Ahmed on 24 April, 2017
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 24TH DAY OF APRIL 2017
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL No.651 OF 2010
BETWEEN:
Intelligence Officer,
Narcotics Control Bureau,
South Zonal Unit,
Chennai-600 090.
...Appellant
(By Shri. K.N.Mohan, Advocate)
AND:
1. Shamoon Ahmed Sayed @ Ahmed,
S/o Syed ABul Ala,
Aged about 33 years,
No.17/4 (II Floor), 4th A Cross,
Laljee Nagar, Lakkasandra,
Bengaluru-560 030.
2. Dhiraj Malhotra S/o Prem Malhotra,
Aged about 34 years,
No.C 118, Ground Floor,
Ashoka Enclave Part II,
Faridabad, Haryana.
2
3. Nitin Choudhury S/o Phool Chand,
Aged about 34 years,
No.C 404, Sector 14,
Sonepat, Haryana.
4. Sayed Abudl Asim
S/o Syed Abul Ala,
Aged about 33 years,
No.17/4 (II Floor),
4th A Cross, Laljee Nagar,
Lakkasandra,
Bengaluru-560 030.
...RESPONDENTS
(By Shri. Hashmath Pasha, Advocate)
*****
This Criminal Appeal is filed under Section 378(1) &(3)
Cr.P.C., praying to set aside the Judgement dated 29.12.2009
passed by the XXXIII ACC & SJ & SPL. Judge (NDPS),
Bengaluru in Spl C.C.152/2004 acquitting the
respondents/accused for the offence punishable under Sections
8(c) r/w 21, 25, 28, 27-A and 29 punishable under Section
21(c), 25, 27-A, 28 and 29 of NDPS Act.
This Criminal Appeal coming on for hearing this day, the
court delivered the following:
JUDGMENT
Heard the learned Counsel for the appellant and the learned Counsel for the respondents.
3
2. The State is in appeal through the Intelligence Officer, Narcotics Control Bureau, South Zonal Unit, Chennai, against the acquittal of the respondents-accused for offences punishable under Sections 8(C) read with Sections 21, 25, 27- A, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Hereinafter referred to as the "NDPS Act" for brevity).
It was alleged that the respondents had entered into a criminal conspiracy, whereby they intended to transport 8 Kilograms of heroin, a narcotic drug from Delhi via Bengaluru to Srilanka and the carrier was one Anand of Srilanka. It had to be purchased by respondent No.1 from one Jain of Mandsaur at Fariyabad. It was alleged that respondent Nos.1 to 3 were friends even prior to the date of the incident and they were instrumental in transporting contraband from Delhi to Bengaluru and had stayed at Hotel Minerva. As already stated the drug was procured from Madhya Pradesh. It was concealed 4 in eight packets, weighing 8.185 Kilograms in all and was concealed in the false bottom of two suitcases and respondents No.2 and 3 carried the same from Delhi on 24.12.2003 in Rajadhani Express and had reached Bengaluru on 28.12.2003 and had stayed in Room No.301 at Hotel Minerva along with respondent No.1, which was booked in advance on 26.12.2003. This was done for gain by respondents Nos.2 and 3 and it was intended to be handed over to one Anand of Srilanka and it was to be transported from Bengaluru to Srilanka. It is on these allegations of having procured, possessed and transported 8.185 Kilograms of heroin, which was concealed in two suitcases. Thereafter, they were intercepted and arrested and the contrabands seized at Bengaluru by the Officers of the Narcotics Control Bureau, South Zonal Unit, Chennai, which had received information of the acts of the respondents on 28.12.2003 and had come to Bengaluru and had visited Hotel Minerva and had enquired about the respondents and had secured two panch witnesses with whom they visited room 5 No.301, where respondent Nos.1 to 3 were staying and they had confronted them and introduced themselves and explained to them of their intention and on inquiry, respondent No.1 is said to have admitted the fact that he had carried the contraband and had delivered it to the premises no.17/4, 2nd Floor, 4th 'A' Cross, Laljee Nagar, Lakkasandra, Bengaluru, where respondent No.1 was said to be staying and it was placed in the kitchen of the premises.
On this information, the said officers along with the said respondent no.1 then proceeded to Laljee Nagar and found respondent no.4 who was present in the premises and he was also told about the identity of the officers and their purpose of visit and it was claimed that the respondents had admitted that the contraband was kept in the kitchen room. It was brought out of the kitchen and the false bottom of the rexin bag was cut open and 8 bags of heroin were recovered and samples were drawn from the said packets and sent to the Forensic Science 6 Laboratory, Chennai for analysis, apart from conducting the test on the spot to ascertain the nature of the drug. It is thereafter further proceedings were taken, such as, drawing up of mahazar, recording of the statement of accused and issuing arrest memo and thereafter, having arrested them and having produced them before the Court of the Magistrate at Bengaluru on 30.12.2003, the accused thereafter were remanded to Judicial Custody. Later, a test report was received from the Forensic Research Laboratory, confirming that the samples contained the presence of Diacetyl Morphine i.e., Heroin and remnant sample was collected by S. Karthikeyan, Intelligence Officer of Narcotic Control Bureau (NCB) on 17.05.2004.
Thereafter, a charge sheet was filed against the respondents before the Court of Sessions, which is a Special Court to which the case was committed for the offences punishable as aforesaid and the case was numbered as Special C.C.No.152/2004. The accused had pleaded not guilty and 7 claimed to be tried. It is on a close analysis of the evidence that was tendered by the prosecution that the Court below has acquitted the accused. It is that judgment which is under challenge in the present appeal.
3. The learned Counsel for the appellant would contend that there were five charges in all and in order to prove these charges, six witnesses have been examined as PWs.1 to 6, and Exhibits P-1 to 45 and Material Objects MOs.1 to 36 have been marked.
Insofar as the reasoning of the Trial Court in acquitting the accused is concerned, firstly, the Court below has found that Exhibit P-1, the Information Report as being invalid and vitiating the entire proceedings. PW.3, the Superintendent of Police, NCB, a Gazetted Officer, has been held not to have any authority under Section 41(2) of the NDPS Act, to act as search and seizing Officer or to arrest the persons mentioned in Ex.P-1, in the background that the information as regards the 8 transport and procurement of contraband had been received on telephone by PW-1, the Intelligence Officer and it was for the Intelligence Officer to have reduced the information to writing and thereafter having proceeded to act on the information. The Court below at Para-21 to 38, according to the learned counsel for the appellant, has opined that the procedure followed after having received the information is contrary to the mandatory requirement of law and therefore has held the same as invalid. In this regard, the learned counsel would contend that the adequate or substantial compliance with Section 42 was sufficient and any irregularity in this regard namely in having not complied with Section 42 would not vitiate the trial unless it is demonstrated that prejudice has caused to the accused and seeks to place reliance on Karnail Singh Vs. State of Haryana (2009) 8 SCC 539.
It is further contended that to the same effect is the decision of the Supreme Court in State of Punjab vs. Balbir Singh, AIR 1994 SC 1872, wherein it is held that even if there is 9 no strict compliance with the provisions of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the 'CrPC', for brevity), the search being conducted would not become illegal.
In State of Haryana Vs. Jarnail Singh, (2004) 5 SCC 188, it is again held that compliance with the Proviso to Section 42 would not be necessary where the Superintendent of Police was also a member of the searching party and was exercising his authority under Section 41, in which event, the mandate under Section 42 would not be attracted. It is further contended that the Trial Court has also opined that the alleged information having been received by PW-1 cannot also be believed for the reason that there was reward that was to be given to an informant on the basis of whose information, a successful seizure is made of contraband and in the present case on hand, the NCB having acted on the information and having successfully seized the contraband, the absence of the informant having come forward to claim the reward and no such reward 10 having been made, has been held against the respondents, which is unfair. On the other hand, in the evidence of PW-3, he has deposed that the informant has not chosen to claim the reward. When the informant does not come forward to claim the reward, it cannot be said that it would lead to a presumption that the information received was false and concocted, when in actual fact, acting on the information, the officers have indeed seized the contraband. Therefore, that was not a ground to hold that the Information Report at Ex.P-1 was a concocted and a false document.
One other ground on which the Court below has acquitted the accused is the circumstance that it was not in dispute that no case diaries were maintained and in the absence of case diaries and other related files, the Court having come to the conclusion that the genuineness of the information received and the charges against the accused therefore being concocted is again questioned on the footing that there is no mandate on 11 the Officer of the NCB to maintain diaries as investigation and the process of following up secret information in intercepting and seizing the contraband and possession of contraband is carried out on the basis of information received by the superior officers, who in turn direct the constitution of a team of officers and entrust the work to them, which is carried out on the spur of the moment and since the work of surveillance is normally done in secrecy, the question of maintaining of case diary, which would stand the risk of leakage of information is avoided. But however, the NCB maintains the case files, which would record the sequence of events in any given investigation or case and therefore, the reasoning of the Trial Court that the absence of case diary is fatal to the case of prosecution and has resulted in miscarriage of justice and the Trial Court's findings that absence of an official diary and log book of the vehicle of the department are fatal to the case. In that, the movement of the officers at the relevant point of time in having apprehended the accused or also having seized the contraband not being 12 disclosed by any official record as being fatal to the case is unfair and given the nature of circumstances, where the officers are required to think on their feet in the course of discharging their duties in tracing out persons out and seizing, the secret movement of contraband renders this task of maintaining the case diaries inconvenience and cumbersome. The non- maintenance of such records, the learned counsel would submit, could not vitiate the proceedings when the end result was the seizure of contraband which is established by cogent evidence of several witnesses. The evidence of the said officers cannot be negated as they are independent officers having no ill will or grudge against the accused who are absolute strangers. Therefore, the evidence could not have been discarded as not being relevant in the absence of case diaries and other material. Further, the reason for the Court having acquitted the accused is as regards non-compliance with Section 50 of NDPS Act namely, that the report has not been submitted to his immediate superior and this has been admitted even by PW-3. However, 13 PW-2 in his cross examination has stated that PW-1 appraised the accused of Section 50 of the NDPS Act and therefore, there was due compliance and Ex.P-2 Mahazar would substantiate the said circumstance of PW-1 having appraised the accused of the same namely, of their right to be searched in presence of a Gazetted Officer. Hence, it is contended that no infirmity arises in drawing up of Ex.P-2 Mahazar, especially when PW-3 himself was a Gazetted Officer and the search having been conducted in his presence, there is no violation of Section 50 in this regard.
He would place reliance on several authorities, namely, Sekhar Suman Verma vs. Superintendent of Narcotics Control Bureau and others, (2016)11 SCC 368, Ravindran @ John vs. Superintendent of Customs, (2007)6 SCC 410 and also Navdeep Singh v. State of Haryana, (2013) 2 SCC 584.
Another ground on which the Court below has negated the case of prosecution is that reliance has been placed on 14 voluntary statements of accused Nos.1 to 4 and therefore the proceedings are vitiated. This the learned counsel would submit is unreasonable. For it is not the case of the accused that they had made any such statement under coercion or under any kind of force or threat and the said voluntary statements not having been marked would not vitiate the proceedings as the voluntary statement of accused No.1 not having been marked would not vitiate the proceedings as the voluntary statements of other accused were indeed marked and could be used in evidence. In this regard, he would place reliance on the following authorities:
R.Shreekanth vs. Divisional Commissioner, Bangalore, ILR 2004 KAR 3835, Shrishail Nageshi Pare vs. State of Maharashtra, AIR 1985 SC 866.
It is pointed out that the Court has also expressed doubt about the seal used in sealing the said contraband and the drug test kit and the weighment test memo. In that, the Court has 15 doubted the genuineness of the seal on the ground that the NCB seal No.17 used in the proceedings voluntarily could be used freely and was accessible to any of the officers working in NCB and further that the test memo at Ex.P-17 was not prepared at the time of seizure of the properties by the search and seizing officer and further the test memo was a computerized print out where as Ex.P-2, the mahazar was hand written. This inconsistency is not explained, whereas, PW-2 himself has admitted that he had signed Ex.P-17 on 02.01.2004. In any event, these were minor discrepancies on which much has been made by the Trial Court in coming to the conclusion that the charges have not been proved and therefore seeks that the judgment of the court below be set aside and the accused be punished appropriately with maximum punishment.
4. On the other hand, learned Counsel Shri Hashmath Pasha would point out that the reasons assigned by the Trial Court in acquitting the accused cannot be faulted.
Apart from which, he would point out that the glaring 16 circumstances are that the independent panch witnesses have not been examined in this case, apart from Section 42(2) of the NDPS Act not being complied with. In that, PW.1, who received information was a non-gazetted officer, and he ought to have forwarded the copy of his information to his immediate official superior, which is held be mandatory. There is admittedly no compliance with this mandatory requirement and on that ground itself, the so-called information received, on the basis of which, further action has been taken, would be rendered nugatory and it would vitiate the proceedings.
It is also pointed out that a personal search of accused nos.1 to 4 was carried out, but the mandatory procedure prescribed under Section 50 of the NDPS Act is admittedly not complied with, which in turn would vitiate the search and seizure. In that, the mere presence of a gazetted officer as a part of the raiding team would not serve the requirement of law under Section 50 of the NDPS Act and in proceeding to conduct search and seizure, firstly, the Investigating Officers are said to 17 have apprehended accused nos.1 to 3 in Room No.301 of Minerva Hotel, but no Mahazar was said to have been drawn. It is not the case of the prosecution that any contraband was found in Room No.301 or on the person of the accused. However, the seizure of the contraband, heroin weighing about 8.165 Kilograms was seized from premises No.17/4, II Floor, 4th A Cross, Laljee Nagar, Lakkasandra, Bengaluru, but however, no document was produced to show that the said premises belonged to any particular person nor was any document produced to demonstrate that there was any person in possession of the same, much less, accused no.4 as alleged. It is not the case of the prosecution that he was the owner of the premises nor were any of the other accused, namely, accused nos.1 to 3, the owner of the premises. And they are apparently residents of Delhi and accused no.4 was a student of B- Pharmacy course in Bengaluru and the alleged raid and seizure of the contraband in the premises no.17/4 of Laljee Nagar, Bengaluru, where accused No.4 was said to be in occupation of 18 the premises and the seizure of the contraband, on information provided by him, in the kitchen of the premises in rexine bags is therefore not established.
Further, even the alleged seizure of the contraband and a test having been carried out on the contraband so seized is not established, as apparently the test memo is not prepared in the presence of the panch witnesses nor the seal used for affixing on the packets was not given to the custody of the panchas. Further, as soon as the contraband is seized, Section 52(3) of NDPS Act requires that the seized substance should be deposited in the nearest Police Station or before the Officer in- charge of the Police Station at the earliest. This is not complied with. It is also pointed out that the arrest of the accused was not on 29.12.2003, either in the hotel room namely, Minerva Hotel or in the premises No.17/4 of Laljee Nagar, Bengaluru and therefore, the illegal detention and custody from 29.12.2003 to 31.12.2003 has gone unexplained and the arrest procedure has not been followed, which would cast a serious infirmity on the 19 sequence of events and the procedure as claimed by the prosecution.
The further infirmity in the continued investigation that was allegedly carried on is that PW.4 had continued the investigation as a part of the raiding team, when PWs.1 to 5 were all interested in the success of their investigation and therefore, were clearly focussed on framing the accused, on the basis of such vitiated procedure, which would not bring the charges home and therefore, the Court below having acquitted the accused on several grounds would also require this Court to confirm the same in the light of further infirmities and glaring breach of procedure, which is evident from the record.
Further, the Chemical Examiner's Test Report as per Ex.P-18 does not assign any reasons or grounds for the opinion that is formed and a mere opinion has no evidentiary value, especially when it is admitted by PW.6 that he had only conducted a preliminary test not a confirmatory test, as are mandatory in even presenting such opinion as to the contents of 20 the material that was analyzed. The learned Counsel, therefore, seeks dismissal of the appeal.
5. Given the subsequent sequence of events in the manner which the respondents were intercepted and the case initiated against the respondents and on the basis of the material that was produced and the evidence tendered, the Court below had framed the following points for consideration:
1. Whether the prosecution has proved beyond all reasonable doubt that in view of the criminal conspiracy entered into between the accused Nos.1 to 4, accused No.1 procured 8.185 kgs of heroin from M.P. and accused No.1 had concealed 8 packets of heroin containing 8.185 kgs in the false top and bottom of two VIP suitcases and thereby handed over to the two carriers namely accused Nos.2 and 3 at Delhi on 24/12/2003 and thereby they have carried two suitcase containing 8.185 kgs heroin in Rajadhani Express and reached Bangalore on 28/12/2003 and they stayed in hotel room No.301 of Hotel Minerva along with accused No.1 and accused Nos.2 and 3 have did as carriers for the lure of money and this contraband has to be handed over to 21 a person by name Anand of Srilanka and further it has to be transported to Srilanka and thereby accused Nos.1 to 4 have in view of their conspiracy illegally, procured, possessed, transported 8.185 kgs of heroin by concealing it in two VIP suitcases and they intended to hand over the same at Bangalore to a person by name Anand of Srilanka for the future destination to Srilanka and thereby accused Nos.1 to 4 have committed the offences punishable U/Sec.8© read with Sections 21, 25, 28, 27-A and 29 and punishable U/Sec21(c), 25, 27-A, 28 and 29 of N.D.P.S. Act?
2. Whether the plea of guilt of accused Nos.2 and 3 made during framing of charge against accused Nos.1 to 4 on 2/3/2007 is to be looked into and further incriminating thing made by accused No.2 against accused No.1 in his accused statement whether it has to be looked into independently?
The Court below has answered the same in the negative and acquitted the accused.
6. To arrive at such a conclusion, the evidence that was examined was that of PWs.1 to 6 and the exhibits and material objects that were produced. PW.1 was the Intelligence 22 Officer of the NCB, Chennai, who is said to have received information on 28.12.2003 as per Ex.P-1, while he was in his office at Chennai and he had left Chennai and came to Bengaluru on 29.12.2003 and thereafter had conducted search of Room No.301 of Minerva Hotel and thereafter had proceeded to premises No.17/4 at Laljee Nagar, Bengaluru and it is there that the heroin was seized under a mahazar, Ex.P-2. Apart from inventory of other articles seized as per Ex.P-3.
PW-2 was yet another Investigating Officer, who had accompanied PWs-1 to 3 for search and seizure and he was the one who had recorded the statement of accused No.2 and effected his arrest on 30.12.2003 and had obtained a remand order from the Magistrate, Bengaluru to remand the accused to the Judicial Custody and he had also carried the samples of the heroin seized to the Customs House Laboratory at Chennai and had obtained a Chemical Examiners Report and had submitted the same.
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PW-3, the Superintendent of Police, NCB, Chennai had received information from PW-1, who in turn had received information from an informant. The said information being a report under Section 42 of NDPS Act, had left along with PWs- 2 and 3, left Chennai at about 11.30 a.m. and reached Bengaluru at 9.00 p.m. on 29.12.2003 and it is on the next day at 4.00 p.m. that accused nos.1 to 3 were apprehended though there was no incriminating material found either on the person of accused nos.1 to 3 or in the room in which they were staying at Minerva Hotel. But, on their information, the team had proceeded to the premises No.17/4 of Laljee Nagar, Bengaluru and the contraband has been seized. As rightly contended by Shri Hashmath Pasha, learned counsel for respondents, there has been no compliance with Section 42(2) of the NDPS Act, which requires that a person receiving information is obliged to furnish information to his superior officer immediately, this has not been complied with.
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In the case of Sukhdev Singh vs. State of Haryana, AIR 2013 SC 953, it is laid down that the provisions of Section 42 are intended to provide protection and has laid down the procedure which is mandatory and should be followed positively by the Investigating Officer. He is obliged to furnish the information to his superior officer forthwith.
The learned counsel for the appellant seeking to contend that there has been compliance with the provisions is concerned, if there was adequate or substantial compliance, that the non-compliance in all respects with Section 42 of NDPS Act, may not vitiate the trial, especially, if no prejudice is caused to the accused, is a contention seeking to draw sustenance from Karnail Singh vs. State of Haryana, (2009)8 SCC 539. However, that would be applicable only if there was substantial compliance. However, in the present scenario, there is no compliance at all, in which event, to assume that there has been adequate and substantial compliance and therefore, the procedure is not vitiated, cannot be applied to the case on hand. 25 The observation in State of Punjab vs. Balbir Singh,AIR 1994 SC 1872, to the effect that even if there is no strict compliance with the provisions of the CrPC, the search would not be rendered illegal, is also not relevant.
The further contention placing reliance on State of Haryana vs. Jarnail Singh, (2004)5 SCC 188, to the effect that the Superintendent of Police was also a member of the searching party and was exercising his authority under Section 41 of the NDPS Act and that the proviso to Section 42 was not attracted, cannot be readily accepted. The primary requirement of reducing the information of a superior officer into writing and the proceedings being taken is a mandate, which cannot be compromised nor the fact that the Superintendent of Police was also a member of the searching party and that he was exercising his authority under Section 41 and therefore, Section 42 is not attracted, could not address the safeguards that are built into the procedure to ensure that there is no prejudice caused to the accused, by the prosecution seeking to frame a case against 26 him, without giving him an opportunity of proceedings being taken against him in the presence of a Gazetted Officer, to avoid any mischief or foul play and the prosecution seeking to build a case against the accused. And therefore, when mandatory procedure cannot be circumvented on the footing that the Superintendent of Police was himself a party to the raiding team, the requirement could be overlooked.
However, in Ritesh Chakarvarti vs. State of Madhya Pradesh, (2007)1 SCC Criminal 744, the Supreme Court has taken a different view that recovery of contraband in the presence of an independent person is an important step in the search proceedings and it should normally be conducted by a Gazetted Officer. Even if the Gazetted Officer was a part of raiding team, it would not sub-serve the Section 50 of the NDPS Act. In that view of the Supreme Court, the earlier view rendered in Jarnail Singh's case supra, would stand distinguished and Section 50 of the NDPS Act also makes it imperative on the part of the empowered officer to appraise a 27 person intended to be searched of his right under Section 50 of the NDPS Act in the presence of a Gazetted Officer or a Magistrate. This has not been complied with either when room No.301 was searched and the accused nos.1 to 3 were apprehended or when the premises in which accused no.4 was residing at Laljee Nagar, Bengaluru was searched.
The decision in Vijaysingh Chandubha Jadeja vs. State of Gujarat, (2011)1 SCC Crl. 497 lays down that it is imperative on the part of the empowered officer to appraise a person who is intended to be searched of his right under Section 50 of the NDPS Act before a Gazetted Officer.
It is further noticed that in Karnail Singh's case, supra, reliance of which is placed by the learned counsel for the appellant, it has been laid down that compliance with the requirement of Section 41(1) and 42(2) of the NDPS Act, in reducing the information into writing and sending a copy thereof to the superior officer should normally precede the seizure and search by the officer. Therefore, this again has not 28 been complied with. The judgment cited would in fact, militate the case against the appellant. The seizure of the heroin and the manner in which the same has been dealt with in sending samples for analysis and production of the same before the Court was also found wanting. In that, the expert's opinion received was bereft of reasons in the opinion having been formed.
In the case of State of Himachal Pradesh vs. Jai Lal, (1999)7 SCC 280, it is laid down that an expert is not a witness of fact. His evidence is really of an advisory character. His duty is to furnish the Court with necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with other evidence of the case. The credibility of such a witness depends on the reasons stated in 29 support of his conclusions and the data of materials furnished shall form the basis of his conclusion.
7. Given the state of the law and having regard to the gross infirmities, it cannot be said that, any fault has been committed by the Trial Court in acquitting the accused. The Trial Court has in its detailed and reasoned judgment has rightly acquitted the accused. Hence, there is no warrant for interference by this Court. The judgment of acquittal is affirmed. Accordingly, the appeal is dismissed.
Sd/-
JUDGE nv