Kerala High Court
Habeeb Rahiman vs Department Of Revenue ... on 17 December, 2009
Author: V.Ramkumar
Bench: V.Ramkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 862 of 2009()
1. HABEEB RAHIMAN, S/O. ABDULLA KUTTY,
... Petitioner
Vs
1. DEPARTMENT OF REVENUE INTELLIGENCE/CRU
... Respondent
For Petitioner :SRI.C.K.SREEDHARAN
For Respondent :SRI.C.P.UDAYABHANU
The Hon'ble MR. Justice V.RAMKUMAR
Dated :17/12/2009
O R D E R
V. RAMKUMAR, J.
* * * * * * * * * * * * * * * * * *
Crl. Appeal Nos. 862, 774, 1013
and
1183 of 2009
* * * * * * * * * * * * * * * * * *
Dated: 17th day of December 2009
JUDGMENT
Crl. Appeal Nos. 862/ 2009, 1013 of 2009 and 774 of 2009 are filed by accused Nos. 1 to 3 respectively in S.C. No. 29 of 2008 on the file of the Special Court (N.D.P.S. Act cases) Vadakara (hereinafter referred to as the "Special Court") for short challenging their conviction under Sections 21 (c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the N.D.P.S. Act for short). Crl.Appeal No. 1183 of 2009 is filed by the Senior Intelligence Officer, Directorate of Revenue Intelligence (DRI for short), Kozhikode challenging the acquittal of A1 of the offence punishable under Section 28 of the N.D.P.S. Act and challenging the acquittal of A2 and A3 of the offence punishable under Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:2:- Section 21 (c ) of the N.D.P.S. Act. It is also contended that the sentence imposed on A1 to A3 is inadequate.
2. For the conviction of A1 under Sections 21 (c ) and 29 of the N.D.P.S. Act and for the conviction of A2 and A3 under Section 29 of the N.D.P.S. Act, they were each sentenced to rigorous imprisonment for 10 years and to pay fine of Rs. 1,00,000/- and on default to pay the fine to undergo rigorous imprisonment for one year.
THE PROSECUTION CASE
3. The case of the prosecution is as follows:-
Habeeb Rahman @ Kunhappu (A1) and Chottu (A4) were in Saudi Arabia earlier. They came back to India and met at Mumbai and entered into a criminal conspiracy to involve themselves in heroin trafficking. A1 used to contact A4 in his Mobile Phone No. 9846246500 taken in the name of one Faizal who had expired two years back. A4 was using the Mobile No. 9983112901 taken in a fictitious address. The arrangement was that A4 would procure the heroin and Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:3:- send it through Kiran Kumar @ Rakesh (A2) from Kotta in Rajasthan to Calicut in kerala. The services of Gurudharshan Singh @ G.S. Rattan (A3) a railway ticket examiner by occupation was utilised for arranging safe travel of A2 and transport of the contraband from Kotta to Calicut by rail. A2 and A3 used to travel together with heroin by rail even on earlier occasions. During the present occasion on 23- 3-2008 A2 and A3 travelled together in one ticket occupying berth Nos. 27 and 28 of Coach No. N.R.01051 of Rajadhani Express (Train No. 2432) from Kotta to Calicut. They reached Calicut around 10.30 p.m. On 24-3-2008. Immediately on arrival at Calicut A2 contacted A1. A2 and A3 occupied Room No. 301 of Hotel Malabar palace at Calicut. In the morning of 25-3-2008 A1 went to the aforesaid room occupied by A2 and A3 and received MO1 suit case containing 5.178 kgms of heroin and carried the same in his Ford Fiesta Car bearing Registration No. KL-11-Z-1515 to the house of his friend Abdul Kareem (P.W.17) was residing at Homoeo Bhavan, Kuthiravattom, Calicut Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:4:- and kept there. Another consignment of 6.218 kgms of heroin kept in MO15 zipper bag handed over to A1 by A2 was carried by A1 to his uncle's house at Edavannappara and kept there. A1 remitted Rs.
2,00,000 and Rs. 4,00,000 respectively on 31-1-2008 and 3-3-2008 to the Account of Rajesh Bharadwaj (A6) through ICICI Bank, Calicut on instructions from A4 the supplier of heroin towards the value of heroin received. On 25-3-2008 acting on a credible secret information Officers of the Directorate of Revenue Intelligence, Calicut seized MO1 suit case and MO15 zipper bag from Homoeo Bhavan, Calicut and Kolatheekal House, Edvannappara in Malapppuram District respectively. A4 (Chottu) could not be located so far. A6 (Rajesh Baradwaj, whose address has been located at Chandigarh and whose accounts have been freezed is absconding. A5 (Abdul Gafoor) is a person who had purchased a portion of heroin from A1 and is involved in the criminal conspiracy with A1 for selling heroin in India. A1 to A3 and A5 have also admitted their complicity in the separate statements given to Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:5:- P.W.28 the complainant under Section 67 of the N.D.P.S. Act. A1 to A3 and A5 have thus committed offences punishable under Sections 21 (c ) and 29 of the N.D.P.S. Act. Since A1 attempted to effect sale of the heroin so procured through A2 and A3, A1 has also committed an offence punishable under Section 28 of the N.D.P.S. Act.
THE TRIAL
4. Out of the six accused persons, A1 to A3 in custody and A5 on bail alone faced trial. On A1 to A3 and A5 pleading not guilty to the charge framed against them by the Court below for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 29 witnesses as P.Ws 1 to 29, and got marked 58 documents as Exts. P1 to P58 and 20 material objects as MO1 to MO20 series.
5. After the close of the prosecution evidence the accused were questioned under Sec. 313 (1) (b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:6:- prosecution. They denied those circumstances and maintained their innocence. The first accused in the separate statement filed him stated as follows:-
He has absolutely nothing to do with this case. He does not have any acquaintance with accused Nos. 2 to 4 or 6. Except for the fact that the 5th accused is a person belonging to his place, he has no other relationship with A5. He is running a medical shop in his native place at Edavannappara and he is also a partner in Malabar Travels, Kozhikode conducting the business of "Rent a Car". He is leading a decent life. DRI officials used to hire vehicles from his partnership business. There was some dispute with regard to the rents payable by them and on account of that he had discontinued giving them vehicles on rent. On 25-3-2008 two persons introducing themselves as DRI officers from Kozhikode visited his medical shop run under the name and style of M.C. Medicals at Edavannappara. He was taken to the DRI office. After reaching the said office he was asked to remain there. Within one hour P.Ws. 1 and 28 came to him and told him that he was an accused in an NDPS Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:7:- Case. Thereafter the attempt on the part of the officers was to make him involved in this case. Even though he tried to resist the attempt they practiced third degree methods on him. The next day morning they brought his wife to the office and asked him to sign statements and documents failing which they threatened to make her also an accused in the case. Unable to withstand the pressures he gave his signatures as demanded. He was not voluntarily affixing his signatures to the statements and other documents. He did so on account of the threat, inducement and ill-treatment. They also threatened him that in case he revealed his experience to anybody, they would visit him with more harm and that his wife could be made an accused at any stage of the proceedings . That is the reason why he did not make any complaint before any of the authorities including the Magistrate. Subsequently, after subjecting him to mental torture his signatures and handwriting were taken in several papers while he was in the District Jail, Kozhikode. At that time also it was to avoid the corporal punishment and danger to his wife and children that he lent his signatures and Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:8:- handwriting. He had married his wife ignoring the protest of his own family people. Hence, besides the hostility of his own family members he did not want his wife to be landed in further trouble. He is completely innocent in this case. He has absolutely no connection with Homoeo Bhavan, situated near Kuthiravattom at Calicut. Abdul Kareem (P.W.17) is a distant relative of his. He had absolutely no connection with him or his house. P.W.6 (Beeyumma) is a woman who is inimically disposed of against him in connection with his marriage. Moreover, there are property disputes between him and P.W.6. He has not been keeping any relationship at all with the family of P.W.6 for the past 15 years. Moreover, it is highly improbable that he would have gone and kept his belongings in the house of P.W.6. He has been falsely implicated in this case by resorting to fabrication of false evidence. He may be set at liberty.
A2 had the following to submit before Court:-
He is a coolie by profession. He is acquainted Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:9:- with the family of A3. A3 wanted to visit Calicut for arranging an Engineering seat for his son. A3 was having so many ailments and was not in a position to travel alone. Hence he accompanied A3 to Calicut. On 25-3-2008 himself and A3 were trying to arrange tickets for the return journey. While so, certain police officials took them into custody from the Calicut Railway Station. According to the officials A2 and A3 were wandering in the railway station under suspicious circumstances. Thereafter they were taken to the DRI office , Calicut and the above case was booked against them. He is totally innocent in the above case. This was his first visit to Kerala. He has absolutely no connection with A1 to A5 or A6. The DRI officials have created false evidence by using 3rd degree methods by torturing him and putting him on mental agony. His signatures were taken under duress. In some of the papers they have scribed in Malayalam language. He is totally innocent of the charges levelled against him.
Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:10:- The 3rd accused submitted as follows:-
He is a Traveling Ticket Inspector in the West Central Railway Head Quarters at Kotta in Rajasthan. He is living along with his wife and children. His family is dependent on him. His son by name Jaspreet Singh who completed Plus Two course wanted a seat in National Institute of Technology, Calicut. For the said purpose he visited Calicut along with A2. Since he is a patient of hypertension, diabetes and some other ailments he was not in a position to travel alone particularly, a long journey. In the evening of 25-3-2008 while he along with A2 went to arrange tickets for his return journey certain police officials under the suspicion that they were wandering there under suspicious circumstances took them into custody. Thereafter, they were taken to the DRI office, Calicut and they were booked in the above case. He is totally innocent. He had visited Kerala only once. He has no acquaintance with A1, A4, A5 or A6. He does not know any malayalee. On account of this tragedy he could not attend the marriage of his daughter Puneeth Taran, on Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:11:- 19-4-2008. The evidence against him has been concocted by using third decree methods. They collected his signatures under duress. He was forced to put signatures in some papers which were scribed in Malayalam. This Honourable court may please appreciate his pathetic position and acquit him.
A5 stated that it was without property collecting the relevant evidence and facts that he has been implicated in this case and he may be let off after finding him not guilty.
6. Since this was not a case of no evidence for the prosecution, the learned Special Judge did not record an order of acquittal under Section 232 Cr.P.C. The accused did not adduce any defence evidence when called upon to enter on their defence.
7. The learned Special Judge after trial, as per judgment dated 7-4-2009 acquitted A5 of all the charges but convicted A1 to A3 of the offence punishable under Section 29 and A1 of the offence Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:12:- punishable under Sec. 21 (c ) of the N.D.P.S. Act and sentenced them each to rigorous imprisonment for 10 years and to pay fine of Rs. 1,00,000/- and on default to pay the fine to suffer rigorous imprisonment for one year for each of the offences. Hence, their appeals. Aggrieved by the acquittal of A1 to A3 of the offence punishable under Sec. 28 and the acquittal of A2 and A3 of the offence punishable under Sec. 21 (c ) of the N.D.P.S. Act, the complainant has also filed an appeal. The complainant has also contended that the sentence awarded to A1 to A3 is also inadequate.
THIS APPEAL
8. I heard Advocate Sri.C.K.Sreedharan, the learned counsel appearing for A1 and Advocate Sri. T.G.Rajendran, the learned counsel appearing for A2 and A3 and Advocate Sri.C.P.Udayabhanu, the Special Public Prosecutor appearing for the complainant Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:13:- (Sri. P.M.Vijayan, Senior Intelligence Officer, DRI, Kozhikode).
9. The following points arise for consideration in these appeals:-
i) Whether the conviction recorded against A1 to A3 for the offence punishable under Section 29 of the NDPS Act is liable to be set aside ?
ii) Whether A1 and A2 were also liable to be convicted and punished for the offence punishable under Sec. 21 (c ) of the N.D.P.S. Act ?
iii) Whether A1 to A3 ought to have been convicted for an offence punishable under Section 28 of the NDPS Act also ?
iv) Whether the sentence imposed on A1 and A3 by the court below is inadequate?
Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:14:- POINT NO. I THE PROSECUTION EVIDENCE
10. The case of the prosecution as unravelled by the oral and documentary evidence can be summarised as follows:-
A. On 25-3-2008 at about 8 a.m. P.W.1 (Syed Muhammed) Senior Intelligence Officer of DRI, Kochi Unit, camping at Calicut received a credible secret information to the following effect:-
One Habeeb Rahiman @ Kunhappu (A1) a resident of Kolatheekkal House, P.O. Cheekode, Edavannappara in Malappuram District is bringing heroin from Rajasthan for export to the Middle East . He also distributes the same in northern Kerala. He is at present in possession of about 10 kgms of heroin believed to be secreted in a house at Kuthiravattom, Calicut by name Homoeo Bhavan, Puthiyara Road, Kuthiravattom, Calicut. It is also possible that the said Habeeb Rahman is likely to secret the goods in the house of his uncle Mohammed Kunhi which is situated Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:15:- in front of the house of the said Habeeb Rahman at Edavannappara.
B. Based on the said information, P.W.1 submitted Ext.P1 report in that behalf to P.w.27 (Anandakrishnan) Assistant Director, D.R.I., Kozhikode who is the immediate official superior of P.W.1. After acknowledging Ext.P1 report , P.W.27 issued Ext.P2 search warrant to P.W.1 under Sec. 41 of the N.D.P.S. Act to conduct a search of Door No. 27/486 Puthiyara Road, Kozhikode and seize narcotic drugs and psychotropic substances and documents believed to be secreted in the said building . P.W.27 constituted two teams one headed by P.W.1 and another headed by P.W.5 (S. Radhesh), Intelligence Officer, DRI, Kozhikode to conduct a simultaneous search of Homoeo Bhavan at Calicut and A1's uncle's house at Edavannappara in Malappuram District. C) Accordingly, P.W.1 and his party proceeded to Homoeo Bhavan and conducted a search of the said house belonging to P.W.2 George and his son P.W.10 Dr. Baby George and occupied by their tenant, Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:16:- P.W.17 Abdul Kareem, his wife P.W.18 (Asiya) and their daughter P.W.19 (Seenath Aman) and recovered MO1 Echolac suitcase from underneath the cot in the middle bedroom on the ground floor. On questioning the inmates of the house, P.W.17 stated that the suit case belongs to A1. A1 who was found in the house also admitted that it was his suitcase. The suit case which had a number lock was thereafter opened using the number 300 given by A1 to find MO4 series i.e. five separate packets in MO2 carry bag containing the name "Kottons" and altogether weighing 5.178 kms of heroin. The narcotic drug was confirmed to be heroin by means of a test kit carried by P.W.1. The five packets were given the markings B1 to B5. From out of each packet three samples each weighing five grams were drawn by P.W.1 and the sample packets were given the markings B1/A1, B1/A2, B1/A3, B2/A4, B2/A5, B2/A6 and so on. MO3 carry bag containing the printing "Jayalekshmi" which inter alia contained MO12 Indian Express Daily dated 25-3-2008 containing the seal of Hotel Malabar Palace, Calicut, was found inside MO1 suitcase. MO3 carry bag also contained MOs 5 to Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:17:-
11. MO1 suit case as well as its contents were seized under Ext.P3 mahazar which was prepared on 25-3- 2008 itself from 11.30 a.m. till 1.30 p.m. to which P.Ws 2, 10, and 17 signed as witnesses. A1 also affixed his signature to the said mahazar besides P.W.1 who effected the seizure. One Muraleedharan , Intelligence Officer, DRI, Calicut who is a scribe to the mahazar, also signed.
D. P.W. 5 (S. Radhesh), Intelligence Officer, DRI, Cochin, who was orally directed by his official superior (PW
27) along with his party and two witnesses by name Shamsudheen and Muneer Kunnath, proceeded to Kolatheekkal House, Building No. 1/420, Cheekode Post, Edavannappara in Malappuram District belonging to Muhammed Kunhi (CW15). P.W.6 (Safia @ Beeyumma) the wife of Muhammed Kunhi opened the door, Muhammed Kunhi was not present in the house. A search of the ground floor of the house did not result in the recovery of any incriminating material. There were two rooms on the first floor of the house and those rooms were seen locked. P.W.6 told the raiding party that the room on the right hand Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:18:- side was used by her husband Muhammed Kunhi who had gone out after locking the same and the room on the left hand side was used by her daughter-in-law who had gone to her native place after locking the room and that the key of that room was not with P.W.6. Thereupon P.W.5 requisitioned the services of the police personnel from nearby Vazhakkad Police Station. A police party reached there and brought a blacksmith who had opened the door of the room on the left hand side. . A search of that room did not result in the recovery of any incriminating article. Thereafter P.W.6 herself opened the room on the right hand side using the key which was in that house. MO15 blue coloured zipper bag was found in the room. On opening the said zipper bag it was containing MO16 series of six packets wrapped in brown paper. The contents of the said packets was found to be heroin which was confirmed by means of test kit brought by the raiding party. Those packets were then weighed to find 6.218 kgms of heroin. MO17 series are the papers used for wrapping the six packets. MO20 series are 12 numbers of brown paper covers found in MO16 zipper bag. P.W.5 Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:19:- serially numbered the packets from 1 to 6. Two samples of 5 gm. each were drawn from each of the packets. The samples drawn from packet No. 1 were given the marking S1 and S2 and the samples drawn from packet No. 2 were marked as S3, S4 and so on. MOs 15 to 20 series were seized under Ext.P13 mahazar to which P.W.1, the two independent witnesses, P.W.6 (Safiya @ Biyumma), P.W.28 (P.M. Vijayan, Senior Intelligence Officer, DRI, Kozhikode) P.W.11 (Santha Balakrishnan, Inspector, Central Excise , Customs Preventive Division, Kozhikode etc. affixed their signatures. The search and seizure and preparation of Ext.P13 mahazar lasted from 12.30 p.m. to 7.30 p.m. on 25-3-2008.
E. During the course of the above search A1 revealed that the heroin recovered from his suitcase was handed over to him on that day at Hotel Malabar Palace, Kozhikode by two persons Kiran Kumar @ Rakesh (A2) and Gurudasan Singh Rathan @ G. Singh (A3) staying in room No. 301 of the said hotel. Thereupon P.W.3 (T. Raghavan), the Intelligence Officer, DRI, Kozhikode and his party proceeded to the said hotel on 25-3- Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:20:- 2008 itself and located A2 and A3 staying in the aforesaid room. A search of the said room resulted in the recovery of Ext.P8 electronic ticket No. 0585675291252 in the name of G5 Rattan (A3) in a cover of Riya Travels and Tours Pvt. Ltd. and Indian currency notes worth Rs. 43,000/- in a plastic wrap. A3 was in possession of two mobile phones, the numbers of which were stated as 9352614788 and 997939078. A2 was in possession of a mobile phone with number 9785293171. The Guest Registration Card pertaining to Room No. 301 was called for and the same was produced by P.W.4 (Sandy Kuriakose) the Manager of the Hotel. Ext.P9 is the said Guest Registration Card. In the presence of P.W.4 and one Rajendran, (another employee of that hotel) P.W.3 seized Ext.P8 electronic ticket, cash worth Rs. 43,000/- and Ext.P9 Guest Registration Card under Ext.P10 Mahazar. The search and seizure in Hotel Malabar Palace lasted from 12.30 p.m. to 1.20 p.m. F. The house "Anugraha" bearing building No. 2/174 at Edavannappara, Cheekode Post, Malappuram belonging to A1 was searched on 25-3-2008 itself, Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:21:- but no contraband goods or incriminating documents were seized from the same.
G. Ext.P4 is the report under Section 57 of the N.D.P.S. Act submitted by P.W.1 after the search and seizure, of Homoeo Bhavan. Ext.P11 is the report under Section 57 of the N.D.P.S. Act submitted by P.W.3 to his official superior after the search and seizure of room No. 301 of Hotel Malabar Palace. Ext.P14 is the report under Section 57 of the N.D.P.S. Act submitted by P.W.5 to his official superior after the search and seizure conducted in the house of Moideen Kunhi at Edavannappara.
H. P.W. 27 then authorised P.W. 28 (P.M. Vijayan to take over the case file and the properties under seizure for further investigation of the case.
I) Pursuant to the oral summons given to A1 a statement of A1 was recorded by P.W.28 the complainant on 26- 3-2008 under Section 67 of the ND.P.S. Act. In that said statement (marked as Ext.P42) A1 admitted his ownership of the heroin recovered from MO1 Ecolac Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:22:- suit case kept in the bedroom on the ground floor of Homoeo Bhavan , Puthiyara Road, Calicut and MO15 zipper bag kept in House No.1/420 of Kolatheekkal House, Edavannappara, Malappuram District, that Abdul Kareem (PW17) who was the resident of Homoeo Bhavan was his friend and relative, that one Chottu (absconding A4) of Kotta in Rajasthan whom he befriended in Saudi Arabia had arranged to send the heroin to him few months back, that Chottu agreed to supply him the heroin at Calicut at the rate of Rs. 2,50,000/- per kgm. which he could sell at the rate of 3,00,000/- per kgm. in the local market, that the 5 kgms of heroin found in MO1 suit case was taken delivery by him from Rakesh (A2) who was staying in Room No. 301 of Hotel Malabar Palace, Calicut, that along with A2 one Sardarji (A3) was also seen that as per the direction of Chottu, A1 had taken Ext.P8 air ticket from Riya Travels, Calicut for the travel of one G.S. Rathan (A3) from Calicut to Delhi which was handed over to the said Sardarji and an amount of Rs. 40,000/- was also given to them, that he had informed Chottu that the balance amount will be given later, that he transported the heroin from Malabar Palace Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:23:- Hotel to his friend Abdul Kareem's house in his Ford Fiesta Car bearing Reg. No. KL-11-2-1515, that during that month he received around 15 kgms. of heroin of which 4 kgms, had already been sold and the balance heroin weighing about 11 kgms. was seized by the DRI officers, that the six kgms. of heroin seized from Edavannappara was kept by him in the house of his uncle Muhammed Kunhi (CW15) situated in front of his residence, that he had purchased heroin several times through Chottu who used to contact him in his mobile phone, that the price of heroin sent by Chottu was usually sent through the person bringing the heroin to Calicut, that on two earlier occasions he had sent an amount of Rs. 2,00,000/- each to a bank account of ICICI Bank, Y.M.C.A. Cross Road of Calicut given by Chottu, that he does not remember the said account number, that the said Sardarji (A3) and Rakesh (A2) had given him about 5 kgms. of heroin about two weeks ago, that at that time they were staying in a room in Asma Towers, Calicut, that the mobile number of Chottu was 09988112901, that he (A1) is using the mobile number 9846246500 which was taken in the name of one Faizal (who had expired Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:24:- two years back) for taking to persons like Chottu in this illegal business, that he had printed visiting card showing his name, address and phone number as E.K. Sunil Babu, Standard Marble Agencies, Darussalam Complex, Kozhikode, with mobile Phone No. 447425526 and phone No. 30909999, that the details in the visiting card are fictitious and were printed for conducting the illegal trade in heroin. (A1 produced a copy of the said visiting card on which he affixed his signature). A1 further stated that he had sold around 3 kgms of heroin to one Abdul Gafoor (A5) and one kgm. of heroin to one Hassan of Edavannappara, this time the heroin was brought for the purpose of export to Saudi Arabia for which purpose one Nassar of Mumbai had approached him, that the small polythene packets Aluminum foils etc. (MO5 series, MO7 series) were purchased and kept for sending samples of heroin to the parties of the foreign purchasers, that he does not know the address of Chottu of Rajasthan, that Nazar of Mumbai had given him the mobile number of Chottu, he is having a Santro Car bearing Reg. No. KL-11A-1551 which is also used in connection with the heroin trade, that Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:25:- both his cars are parked in the compound of Homoeo Bhavan. (A1 identified Kiran Kumar @ Rakesh (A2) and Gurudarshan Singh (A3) from the DRI office as the persons whom he met in Room No. 301 of Hotel Malabar Palace, Calicut and stated that Rakesh (A2) calls him as Chachu).
J) Kiran Kumar @ Rakesh (A2) residing at Quarter No.10, Pachpad Road near Chotta nala, Bhavani Mandi, Jhalawad, Rajasthan gave Ext.43 Statement to PW28 under Section 67 of the NDPS Act on 26.3.2008. The said statement is in Hindi and Ext.P43(a) is the English translation. In the said statement A2 stated that he was a resident of Kotta in Rajasthan since the last 7 or 8 months, that Chottu (A4) introduced him to A3 and asked him to go to Calicut along with A3 and to hand over a packet to one Chachu (A1) for which A2 was offered Rs.20,000/- per trip, that it was promised that all arrangements for the journey and stay would be made by A3 working in the Railway Department at Kotta, that on 23.3.2008 A4 (Chottu) gave him some packets in a suitcase from a Karchori shop at Kotta and as per his direction A2 went and met A3 and both of Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:26:- them travelled to Calicut in Rajadhani Express occupying seat Nos.27 and 28 in Coach B3 A/c 2nd Class and reached Calicut at about 10.30 p.m on 24.3.2008, they took a room in Hotel Malabar Palace for their stay, contacted Chachu (A1) that night itself in Chachu's Mobile No.9846246500 given by A4 and informed A1 about their stay in Room No.301 of Hotel Malabar Palace, that on 25.3.2008 A1 came to their room and gave them Rs.40,000/- in cash, that he gave A1 5 polythene packets containing the powder brought from Kotta, that he had on earlier three or four occasions brought similar packets and handed over the same to A1, that A3 had accompanied him in his last trip to Calicut on 8.3.2008 on which occasion they stayed at Hotel Asma Tower, Calicut, that it was A3 who had made arrangements for the railway tickets both to and fro and that he does not know the address of A4.
K. A3, residing at Jain Tower, C-2, 2nd Floor, Balamandir Road, Kotta Junction, Rajasthan, gave a statement to PW28 under Section 67 of the NDPS Act on 26.3.2008. In his statement A3 admitted that he along with A2 had Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:27:- come out to Calicut from Kotta in Rajadhani Express, that they had stayed in Hotel Malabar Palace, that A2 had given packets brought from Kotta to A1, that earlier also he had accompanied A2 and had made arrangements for the journey to bring similar packets from Kotta and had handed over the packet to A1, that during their earlier trip they stayed at Hotel Asma Tower, Calicut, that he was promised Rs.20,000/- per trip for accompanying A2 to Calicut, this time as per his request an air ticket was arranged through A1 for his return journey to Delhi from Calicut and Ext.P8 the said air ticket which was seized by the DRI officials on 25.3.2008.
L. Abdul Karim (PW17) residing at Homoeo Bhavan, Puthiyara Road, Calicut gave a statement to PW28 under Section 67 of the NDPS Act on 26.3.2008. In the said statement PW17 admitted the seizure of heroin kept in MO1 suitcase from his house on 25.3.2008 and stated that his relative A1 used to come to his house at Homoeo Bhavan, that this time in the night of 24.3.2008 A1 had come in his car to his house, A1 had gone out twice or thrice, that A1 stayed there in the Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:28:- night of 24.3.2008, that in the morning of 25.3.2008, A1 had gone out and came back within two hours and at that time A1 was carrying a box and it was from the said box that DRI officials seized heroin, that A1 used to stay in his house often and that he knew nothing about the contents of the packets till the recovery of the same by the DRI officials.
M. A1 to A3 were arrested at 6.30 p.m., 7 p.m. and 6.45 p.m. respectively on 26-3-2008. (Vide Exts. P45 to P47). They along with the properties and seizure documents, were then taken to the DRI office, Calicut from where PW28 prepared Ext.P48 Crime and Occurrence report and registered a case as O.R.No.NDPS/1/2008 of DRI. Calicut. N. A1 to A3 along with properties and seizure documents were produced before the CJM, Kozhikode at 9.45 p.m.on 26.3.2008. The said accused persons were remanded to judicial custody and the properties along with the documents were directed to be produced before the Special Court for NDPS Act Cases, Vadakara. Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:29:- O. The Ford Fiesta car bearing Registration No. KL-11-Z 1515, which was stated by A1 to have been used for transportation of the heroin, and a Hyundai Santro Car bearing Registration No.KL-11A 1551, also admitted by A1 to have been used for transporting the contraband on an earlier occasion and which were seen parked in the compound of Homoeo Bhavan, were searched and seized by PW28 on 27.3.2008 under Ext.P6 Mahazar. PW2, who is an attestor to the said Mahazar, has stated that the two cars were laying at Homoeo Bhavan compound on 25.3.2008 when MO1 suitcase containing the contraband heroin was seized. The documents found inside the two cars were also seized under Ext.P6 Mahazar. Ext.P52 paper slip was obtained form the Ford Fiesta car. On one side of the said paper slip was written the following:-
"Chandeegar A/c.No.632205226014, Rajesh Bardage, PAN ADLPB 8009 L"
On the reverse of the paper slip was written "BAR, Rajesh BharwaJ"
The handwriting found on Ext.P52 paper slip obtained from the Ford Fiesta was forwarded for expert opinion by the Assistant Government Examiner Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:30:- of questioned documents, Hyderabad along with the specimen handwriting of A1. As per Ext.P58 report, it was opined that they are the handwritings of the same person. (But this expert was not examined and his report does not fall under Section 293 (2) Cr.P.C.) P. On 28.8.2008 at 9.30 a.m PW28 submitted Ext.P41 report under Section 57 of the NDPS Act to PW27 Assistant Director regarding the arrest of A1 to A3 and the seizure of the aforesaid contraband heroin as also the two vehicles.
Q. Investigation conducted to locate Chottu (A4) by tracing the owner of the mobile phone No. 9983112901 revealed the owner as one Bane Singh (CW22) Pirawa, Jhalwar. But a search conducted in the residence of the said Bane Singh by the Senior Intelligence Officer, DRI, Jaipur did not result in the recovery of any incriminating material . CW22 also denied in his Section 67 statement any connection with A1.
R. Abdul Gafoor (A5) of Edavannappara gave Ext.P55 Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:31:- statement under Section 67 of the N.D.P.S. Act, to P.W. 28 on 31-3-2008 admitting his acquaintance with A1 but denying having purchased any heroin from him. P.W.28 arrested A5 on 31-3-2008 and produced him before the Chief Judicial Magistrate, Kozhikode who remanded him to judicial custody. A search conducted by P.W.28 in the residence of A5 on 1-4- 2008 did not yield any favourable results. He was subsequently granted bail by the High Court. S. Ext.P40 report under Section 57 of the N.D.P.S.Act was submitted on 1-4-2008 by P.W.28 to P.W.27 the Assistant Director regarding the arrest of A5. T. In the light of the statement given by A1 regarding the deposit of Rs. 2,00,000/- twice in the I.C.I.C.I. Bank, P.W.28 made an investigation in that regard in the said Bank at its branch at YMCA Cross Road, Calicut. It was revealed that Account No. 632205006014 was in the name of Rajesh Bharadwaj (A6) of Chandigarh. As per the records of the bank an amount of Rs. 2,00,000/- was deposited on 31-1-2008 and another amount of Rs. 4,00,000/- was deposited on 3-3-2008 Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:32:- into that account.
U. Investigation conducted regarding the address of Sunil Babu, Standard Marble Agencies, Darussalam Complex, Kozhikode printed in the visiting card furnished by A1 was made by questioning Abdul Rahiman (PW.22) the General Secretary of the Committee which owns the Shopping Complex. As per Ext. P35 letter dated 12-4-2008 P.W.22 informed the complainant that there was no shop by name Standard Marble Agencies in their Shopping complex indicating that the address written in Ext.P53 visiting card given by A1was false.
V. During the course of investigation, Assiya (PW.18) the wife of P.W.17 gave a statement to the complainant on 16-4-2008 admitting the seizure of 5 packets of heroin from Homoeo Bhavan and stated that it was A1 who had kept the suit case in their house, that the two cars were also seized from Homoeo Bhavan on 27-3- 2008. Likewise, Seenath Aman (P.W.19) the daughter of Abdul Kareem (PW.17) and Assiya (P.W.18) had also given a statement before the complainant on 16- 4-2008 to the effect that A1 is a relative of her mother Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:33:- Assiya and A1 used to come to their house frequently and stay there overnight and admitted the seizure of 5.178 kgms of heroin from her house on 25-3-2008 and the seizure of two cars belonging to A1 from her house on 27-3-2008.
W. Ext. P39 is the statement given by Faizal (P.w.26) who is the younger brother of one Faizal who died in March 2006. The Mobile Phone No. which A1 was allegedly using was admitted to be one issued to deceased Faizal. But P.W.26 when examined before Court did not support the said case of the prosecution. Ext.P39 statement also is silent about the mobile phone. X. On 16-4-2008 C.V. George (P.W.2) Cheruvathoor House, Calicut gave a statement to P.W.28 to the effect that he was staying in the same compound in which the house occupied by Abdul Kareem (P.W.17) and and his family was situated, that A1 who is a relative of P.W.17's wife used to visit them frequently and that he and his son Dr. Baby George (P.W.10) had witnessed a search conducted by the D.R.I. Officials on 25-3-2008 in the house of Kareem where A1 was also present Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:34:- and 5 packets of brown sugar were also seized from that house and again on 27-3-2008 two Cars belonging to A1 were also seized. P.W.10 Dr. Baby George residing at Homoeo Bhavan also gave a statement in terms of the one given by his father P.W.2.
Y. P.W.14 (Sunny Mathew) furnished Ext.P25 scene plan of the ground floor of Homoeo Bhavan on 17-4-2008. P.w.13 (Muhammed ) Village Officer, Cheekkode furnished Exts.P23 and P24 scene plans of the ground floor as well as the first floor of the hosue of Muhammed Kunhi at Edavannappara from where 6.218 kgms of heroin was seized as per Ext.P13 mahazar.
Z. Ajithkumar (P.W.23) the Manager of Riya Travels , Calicut from whom Ext.P28 series of electronic ticket from Calicut to Delhi was puchased gave a statement to P.W.28 on 23-5-2008 to the effect that it was through him that the air ticket was booked by a party whose cell No. was 9846246500. On 23-5-2008 Reena Muraleedharan (P.W.24) an employee of Riya Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:35:- Travels, Calicut gave a statement to P.W.28 that it was A1 who came to her office for giving the details of the air ticket for A3.
Aa. On 9-6-2008 P.W.28 after taking permission of the court below recorded a further statement (Ext. P57) of A1 from the District Jail, Kozhikode in the presence of Moideenkutty (P.W.9) the Assistant Jailor. In that statement A1 confirmed that the handwriting on Ext.P52 slip of paper containing the writings recovered from his car KL-11-Z-1515 (Ford Fiesta) seized on 27-3-2008 is that of himself, that the amounts sent by him in the Account Number written on Ext.P52 paper slip through the ICICI Bank, Calicut constitutes part of the sale proceeds of heroin which he purchased and the amount was sent as directed by Chottu (A4), that he has no deal with Naresh Malhotra. (A1 also furnished his specimen writings identical to the writings found on Ext.P52 slip of paper) . Ab) Ext.P52 along with the paying slips [Exts. P31 and P31
(a)] recovered from ICICI Bank and Ext. P57 statement of A1 along with his writings, were sent to Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:36:- the Government Examiner of Questioned documents, Hyderabad through the court below on 18-7-2008. As per Ext.P58 report dated 5-8-2008 the expert (CW49) opined that the handwritings in the above documents are of the same person. Ext.P58 report also contains the reasons in support of the opinion. Ac. On the request of P.w.28 the court below despatched the sealed packets of sample initially to the Regional Chemical Examiner's Laboratory, Thiruvananthapuram for analysis and report. The State Laboratory informed that the testing of the samples was likely to be delayed for want of control test samples. Hence, a request was made by P.W.28 to the court below to send the samples to the Government Opium and Alkaloid Works, Neemuch in Madhya Pradesh. Accordingly, the sealed sample packets were forwarded to the Laboratory at Neemuch. Ext.P17 is the Chemical Analysis Report dated 24-6-2008 with regard to the samples drawn from the contraband heroin recovered from Homoeo Bhavan on 24-3-2008. After a qualitative and quantitative analysis the samples were found to be diacetyle morphine (heroin). The Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:37:- samples and the percentage of heroin are as follows:
i) B1A1 - 5.44 %
ii) B2A4 - 4.80 %
iii) B3A7 - 6.96 %
iv) B4A10 - 5.84 %
v) B5A13 - 6.85 %
Ext.P18 is the report of Chemical Analysis dated 24- 6-2008 pertaining to the six samples draw from the contraband substance recovered from the Edavannappara House on 25-3-2008. The following are the percentage of heroin detected after quantitative and qualitative analysis:-
i) S1 - 9.24 %
ii) S3 - 11.46 %
iii) S5 - 10.49 %
iv) S7 - 9.07 %
v) S9 - 11.64%
vi) S11 - 7.77%
P.W.8 , Ajay Sharma who was the Assistant Chemical Examiner at Neemuch proved Exts. P17 and P18 reports. Based on Exts.P17 and P18 reports the total quantity of heroin seized from Homoeo Bhavan Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:38:- comes to 310.630 grms and that from Kolatheekkal House, Cheekkode, Edavannappara comes to 646.830 gms. Since the percentage of heroin seized from both the houses exceeds 250 grams, the recovery of heroin from both the houses falls under "commercial quantity" as defined under Section 2 (vii a) of the N.D.P.S. Act read with Sl. No. 56 of the Notification issued as S.O. 1055 (E) dated 19-10- 2001.
Ad) On getting the call details of the mobile Phone 9785293171 (which was possessed by A2) from the Nodal Officer of idea Tele Communications Limited, Jaipur, it was revealed that contacts were regularly established with A1's Mobile No. 9846246500 and A4's No. 9983112901. , On 23-2-2008 at 9 p.m. A2 had contacted A1. On 24-3-2008 at 7.56 a.m. A2 had contacted A 4 and on 25-3-2008 at 8.51 a.m. A2 had again contacted A4 and on 24-3-2008 at 10.52 p.m. A2 had contacted A1. The above call details establish the relationship of A2 with A1 and A4.
Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:39:- Ae) A1 was using the mobile No. 9846246500 taken in the name of Faizal (brother of P.W.26) who expired two years ago and Chottu (A4) was using the mobile No. 9983112901 taken in a fictitious address. A4 would procure the heroin and send it through A2 to Calicut for which purpose the services of A3 a Railway Ticket Examiner by occupation was utilised for arranging safe travel and transport of the contraband from Kotta to Calicut by rail. On A2 and A3 arriving at Calicut they contacted A1 and handed over the heroin to A1. On analysis of Ext.P27 copy of the railway reservation chart issued from Nizamuddin Railway Station, New Delhi and proved by P.W.16 (P.K. Banerji) on 23-3-2008 A2 and A3 travelled together in one ticket occupying berth Nos. 27 and 28 of coach No. NR01051 of Rajadhani Express (Train No. 2432) from Kotta in Rajasthan to Calicut.
Af) After conclusion of the investigation P.W.28 filed the complaint before the Special Court on 18- 9/2008.
Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:40:- ARGUMENT OF A1
11. Advocate Sri.C.K. Sreedharan, the learned counsel appearing for A1 made the following submissions before me in support of his plea for acquittal of A1:-
P.Ws.1, 2, 10 and 17 to 19 are the witnesses examined with regard to the search and seizure from Homoeo Bhavan. Ext.P3 is the seizure mahazar. According to P.W.1 the body search of A1 was conducted and a nil mahazar was prepared. But Ext.P4 report is silent about such body search. P.W.1 would say that Homoeo Bhavan is the name of the compound in which there are two houses . One house is occupied by P.W.17 as a tenant and the other house is occupied by P.W.2, the owner. MO13 series are 10 out of the 15 samples drawn by P.W.1 from the five packets of the contraband narcotic drug seized from Homoeo Bhavan. Surprisingly the Crime Number is written on these packets. Likewise, MO14 series are the remnants of 5 samples after chemical analysis. On those packets also the crime number is written. P.W.1 has admitted that when he interrogated A1 on 24-3-2008 A1 did not make Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:41:- any confession. If so, the case of P.W.28 that on 26- 3-2008 A1 gave Ext.P42 confessional statement recorded under Section 67 of the N.D.P.S. Act cannot be believed for a moment. There is, therefore, every reason to assume that Ext.P42 was obtained under duress. P.W.2 George claims to be the owner of the two houses in the compound by name Homoeo Bhavan. One house is claimed to have been let out to P.W.17 and the other house is claimed to be belonging to P.W.2 only. But Ext.P7 photocopy of the rent deed dated 7-6-2007 shows that the building has been let out by P.W.2 and his son P.W.10 jointly. P.W.2 has not stated about the seizure of any car from the said house. P.W.2 also says that a body search of A1 was conducted and a mahazar was prepared. But no such mahazar was produced. P.W.2 has admitted that the house let out to P.W.17 has a front door on the east and an exit door on the west. If A1 was really present in that house when P.W.1 and his party raided the house, A1 could have escaped through the back door. P.W.10 (Dr. Baby George) S/o. P.W.2 is a Homoeo doctor. He would say that it was P.W.2 Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:42:- who let out their house to P.W.17. But Ext.P7 rent deed says that the house was let out by P.Ws 2 and 10 jointly. P.W.10 would come out with a case that it was A1 who handed over the suit case to P.W.1.
But P.W.1 or the other witnesses have no such case. According to P.Ws 2 and 10 who are the attestors to Ext.P3 mahazar A1 was outside the house and P.Ws 2 and 10 were not taken inside the house by the seizing officers. P.W.2 would say that Ext.P3 mahazar was brought to him in the veranda from where he signed the mahazar. P.W.10 has deposed that while he and his father (P.W.2) were waiting in the veranda, P.W.1 announced at 1.30 p.m. that he got a box. If so, both P.Ws. 2 and 10 could not have seen the seizure. Both Ext.P3 mahazar as well as Ext.P25 plan of Homoeo Bhavan do not show the existence of any exit door on the back side of Homoeo Bhavan. But P.W.s 2 and 10 have admitted that there is such an exit door. If so, even if A1 was present either inside or outside the house, he could have easily slip out of the house and made himself unavailable to the DRI officials to be made an accused in the case. Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:43:- Eventhough P.Ws 17 and his daughter P.W.19 (who did not support the prosecution) were declared hostile, P.W.18 the wife of P.W.17 who also did not fully support the prosecution was not declared hostile. The specific case of A1 is that his signature was obtained under duress on Ext.P3 and other seizure documents on 26-3-2008 after securing his presence in the DRI office, Calicut.
With regard to the seizure from the house of Mohammed Kunhi at Edavannappara also what his wife P.W.6 (Safiya) would say in Court is that it was A1 who brought and kept MO15 zipper bag in that house. Her statement recorded under Sec. 67 of the N.D.P.S. Act was not marked. In Ext.P13 contemporaneous mahazar prepared by P.W.5 there is no statement that P.W.6 had told P.W.5 that it was A1 who had kept the bag containing the contraband substance in that house. A1 has a case that Muhammed Kunhi is on inimical terms with A1. Even according to P.W.6 the room on the right side on the first floor of that house was used by her husband Muhammed Kunhi and he had gone out Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:44:- after locking the room. Going by the testimony of P.W.5 it was P.W.6 who produced the key of the room. If so, the contraband substance was really in the possession of and under control of the said Muhammed Kunhi who was away from the witness box. P.W.28 the complainant has admitted that it was the daughter of P.W.6 who actually searched for and found out the key pertaining to the room from which the contraband heroin was recovered. The admission by P.W.11 (Santha Balakrishnan) who is an attestor to Ext.P13 mahazar that P.W.6 had prevented the DRI officers from entering the house and conducting a search and seizure will go to show that it was not A1 who was behind the concealment of the heroin in that house at Edavannappara belonging to Muhammed Kunhi. Merely because the said Muhammed Kunhi happens to be the uncle of A1, it does not follow that it was A1 who had kept MO15 bag containing the narcotic drug in that house. The preparation of Ext.P13 mahazar was completed at 7.30 p.m. on 25-3-2008. The samples were not sealed from the spot. The occurrence report was registered only on Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:45:- 26-3-2008. However, the sample packets were bearing the crime number. With regard to the two cars seized on 27-3-2008, P.W.2 alone says that those cars were there at Homoeo Bhavan even on 25-3-2008. It is two days after the search of Homoeo Bhavan that Ext.P52 piece of paper containing the Account Number of A6 was allegedly recovered from the Ford Fiesta Car. Admittedly, A1 was not present when those two cars were seized. A1 is the registered owner of the two cars. But the handwriting on Ext.P52 has not been conclusively proved to be that of A1. Ext.P58 report of the handwriting expert is not admissible in evidence since the expert was not offered for cross-examination. Recoveries from the two houses and seizure of the two cards along with the statement of A1 under Section 67 of the N.D.P.S. Act are the only material to connect A1 with the narcotic drug. Mere presence of A1 at Homoeo Bhavan , even if true, is not sufficient to prove exclusive and conscious possession of the heroin. Except Ext. P42 statement under Sec. 67 of the N.D.P.S. Act was given by A1 while in Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:46:- custody from 25-3-2008 and is, therefore, hit by Sec. 24 of the Evidence Act. There was no written summons served on A1 to make a statement. Ext.P42 statement has not been voluntarily made and is not free from pressure. (See Raju Premji v. Customs NER Shillong Unit - 2009 Crl.L.J. 3972 SC = JT 2009 (8) SC 193). A1 had retracted the confession made in Ext.P42 when he filed the bail application before Court as admitted by P.W.28. P.W.1 has admitted that on 25-3-2008 itself he had questioned A1 but A1 did not confess then. If so, it is quiet unbelievable that on the next day, that is, on 26-3-2008 A1 confessed to P.W.28 and gave Ext.P42 statement. Applying the principles laid down in paragraph 23 of State of Punjab v. Baldev Singh - (1999) 6 SCC 172 and Francis Stanley v. I.O. NCB, Thiruvananthapuram - 2007 AIR SCW 497, it cannot be held that Ext.P42 statement was voluntarily given. The Mobile Phone bearing No. 9846246500 said to have been used by A1 for contacting A2 on 25-3-2008 has not been seized. That mobile phone was in the name of Fazil who Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:47:- died two years ago. P.W.26 is the direct brother of deceased Faizal. P.W.26 might have been using that phone. Ext.P53 visiting card of Sunil Babu allegedly seized from A1 at the time of Ext.P42 statement shows three mobile phone numbers of which 9846246500 is one. Except Exts. P42 and P57 statements of A1 there is no reference to the mobile phone number. With regard to Ext.P57 statement, P.W.9 the jailer in whose presence it was recorded says that A1 was merely writing what was dictated to him by the officials. When on 25-3-2008 A1 was not in a mood to confess as P.W.1 would admit, Exts. P42 and P57 statements cannot be treated as voluntary statements.
ARGUMENT OF A2 AND A3
12. Advocate Sri.T.G. Rajendran, appearing for A2 and A3 made the following submissions made before me in support of the acquittal of A2 and A3:-
A2 and A3 are roped in by recourse to Section 29 of the N.D.P.S. Act which is the penal provision for Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:48:- abetment and criminal conspiracy. There is absolutely no evidence of entrustment of heroin by A4 to A2. In fact, even according to the prosecution, A4 (Chottu) is still elusive and could not be traced. There is absolutely no evidence to show that MO1 suit case was taken by A1 from Room No. 301 of Hotel Malabar Palace allegedly occupied by A2 and A3. There is also no evidence to show that A2 and A3 were aware that the number of the lock of MO1 suit case was 300. A2 and A3 are both belonging to Rajasthan and according to P.W.3 both of them were found in Room No. 301 of Hotel Malabar Palace. But both were not arrested at the time of Ext.P10 mahazar. According to P.W.3, A2 was having one mobile phone and A3 was having two mobile phones. But none of those mobile phone was seized. They were not even tested. In Ext.P8 air ticket dated 25-3-2008, the signature of A3 is bearing the date 26-3-2008. After receiving the credible secret information as per Ext.P1 Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:49:- report submitted by P.W.1 to P.W.27, the latter claims to have issued a warrant to P.W.1 to search the premises . Since P.W.1 is a Gazetted Officer and, therefore, empowered under Section 41 (2) of the N.D.P.S. Act, there was no necessity for a warrant. P.W.1 was really exercising his power under Section 42 of the Act. According to P.W.27 he had orally authorised PWs 3 and 5 to make the searches at Room No. 301 of Hotel Malabar Palace and the house of Muhammed Kunhi at Edavannappara. P.W.27 could not have given any oral authorisation since what Sec. 41 of the NDPS Act contemplates is the power to issue warrant or authorisation. That can only be in writing. In the absence of a written authorisation P.Ws 3 and 5 would not derive any authority to conduct search and seizure.
P.W.3 had an obligation to record the information given to him by P.W.27 regarding the complicity of A2 and A3 who were allegedly in Room No. 301 . While Ext.P1 Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:50:- report given by P.W.1 to P.W.27 mentions about Homoeo Bhavan the warrant issued by P.W.27 to P.W.1 mentions only the House No. and there is no reference to Homoeo Bhavan. Ext.P1 report only says that A1 was bringing heroin. It does not say that heroin was brought through A2 or A3 or through any North Indian. Nobody had seen A1 going out of Room No. 301 with MO1 suit case. MO12 news paper found in MO1 suit case has not been proved to be the newspaper which was supplied to Room No. 301 of Hotel Malabar Palace. The newspaper only contains the seal of Hotel Malabar Palace and no room number is written on that. A2 and A3 are relying on the decision reported in Dilip and Another v. State of M.P. - AIR 2007 SC 369 Para 46.
JUDICIAL EVALUATION
13. I am afraid that I find myself unable to agree with the above submissions made on behalf of A1 to A3.
14. The evidence of search and seizure from Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:51:- Homoeo Bhavan has already been noted under clauses A to C of paragraph 10 above. The said evidence clearly shows that A1 was present in the said house. When the operation of the DRI officials headed by P.W.1 was sudden and unawares, there was no question of A1 slipping out Homoeo Bhavan through the back door. In Ext.P3 contemporaneous mahazar, the presence of A1 in that house and his act of acknowledging the ownership over over MO1 suit case and furnishing the number of the lock of the suit case etc. are clearly recited. The testimony of P.W.1 is also quiet credible in this regard. It is true that no separate mahazar has been prepared with regard to the body search conducted on A1. But then no contraband substance or incriminating material was recovered from the body of A1. Hence the failure to prepare an independent mahazar for the body search of A1 does not in any way improbabilise or falsify the prosecution case. The evidence in the case shows that Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:52:- P.W.2 and his son P.W.10 are the owners of the compound by name Homoeo Bhavan by the side of Puthiyara Road near Kuthiravattom at Calicut. There are two houses in that compound. One is occupied by P.W.10 who is a Homoeo doctor and the other is House No. 27/486 which is occupied by P.W.17, his wife P.W.18 and their daughter (PW19). The recovery of 5.178 kgms of heroin in the Homoeo Bhavan by the team of officers headed by P.W.1 as evidenced by Ext.P3 contemporaneous mahazar is clearly proved in this case. The evidence of P.Ws 1,2, 10 and 17 to 19 goes to show that A1 was present at that house. The evidence of P.W.2 shows that on 25-3-2008 the two cars in question were also parked in the compound of Homoeo Bhavan. The testimony of P.W.1 coupled with Ext.P3 contemporaneous mahazar prepared by him go to show that A1 was very much present in that house and he acknowledged his ownership in respect of MO1 suit case Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:53:- from which the 5.178 kgms of heroin was seized. In fact, it was with the number furnished by A1 that the DRI officers could open MO1 suit case which was having a number lock. An important piece of evidence in this connection is the recovery of MO12 Indian Express newspaper daily dated 25-3-2008 from MO1 suit case. The said newspaper was bearing the seal of Hotel Malabar Palace, Calicut. Admittedly, A2 and A3 who belong to Kotta in Rajasthan were occupying Room No. 301 of Hotel Malabar Palace. This evidence coupled with Exts.P42 to P44 statements of A1 to A3 recorded under Sec. 67 of the N.D.P.S. Act clearly shows that the contraband heroin brought by A2 from Rajasthan to Calicut was handed over to A1 who had visited Room No. 301 and A1 had kept a portion of the heroin in Homoeo Bhavan in MO1 suit case and the other portion in his uncle's house at Edavannappara in Malappuram District. It was pursuant to the secret information Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:54:- received by P.W.1 who himself is a gazetted officer empowered under Sec. 41 (2) of the N.D.P.S. Act that the heroin was seized from Homeo Bhavan and Kolatheekkal House respectively as per Exts.P3 and P13 mahazars. It is true that under Sec. 41 (1) of the N.D.P.S. Act a Magistrate alone can issue a search warrant and a Gazetted Officer like P.W.27 can only issue an authorisation under Section 41 (2) of the N.D.P.S. Act. But P.W.1 himself being a gazetted officer of the department of Revenue Intelligence was competent to conduct the search of Homoeo Bhavan even without a warrant by the Magistrate or an authorisation by P.W.27. Hence nothing turns on Ext.P2 search warrant issued by P.W.27 to P.W.1. With regard to the seizure of 6.218 kgs of heroin from MO15 zipper bag from Kolatheekkal house of Mohammed Kunhi, the testimony of P.W.5 along with Ext.P13 contemporaneous mahazar and the evidence of P.Ws. 6 and 11 clearly show that MO15 bag containing Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:55:- the contraband heroin was kept in that house by A1. Eventhough the mobile phones of A1 to A3 were not recovered, I have no reason to disbelieve P.W.1 and P.W.3 who gave evidence with regard to the mobile phones held by A1 to A3. The call details of those mobile phones as decoded through departmental assistance show that A2 along with A3 after reaching Calicut had established contacts with A1 resulting in A1 going to Room No. 301 of Hotel Malabar Palace and taking delivery of the narcotic drug. Ext.P19 is the call data showing that A2 had called A1 to Mobile No. 9846246500 from mobile phone No. 9785293171 on 24-3-2008 at 10.52 p.m. as proved by P.w.28 and on 25-3-2008 A1 had called A2 at 8.19 a.m. P.W.4 who was the front office Manager of Hotel Malabar Palace has also given evidence to the effect that three mobile phones were found in Room No. 301 at the time of search. According to P.W.3 two of the mobile phones belonged to A3 and Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:56:- one mobile phone belonged to A2 and it was to the said mobile phone that A1 was maintaining contacts. Going by the statements given by A1 to A3, A1 had given 40,000/- in cash to A2 in the morning of 25-3-2008 and it was the said cash and Ext.P8 air ticket arranged by A1 through Riya Travels for the return journey of A3 from Calicut to New Delhi which were seized by P.W.3 from Room No. 301 of Hotel Malabar Palace. Rs. 40,000/- recovered from that room is evidently the remuneration payable to A2 and A3. Admittedly, the two Cars which were parked in Homoeo Bhavan and which were seized on 27-3-2008 as per Ext.P6 mahazar prepared by P.W.28 belong to A1 who is the registered owner in respect of the two cars. It is true that the cars were not seized on 25-3-2008. But the search conducted on 25-3-2008 was only in the interior of Homoeo Bhavan and not its compound outside. P.W.2 and P.W.18 have admitted that the two cars were parked in the compound of Homoeo Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:57:- Bhavan even on 25-3-2008. The Account Number pertaining to A6 (Rajesh Bharadwaj) written on Ext.P52 paper slip recovered the Ford Fiesta Car admittedly belonging to A1 is in the handwriting of A1. Eventhough the handwriting expert who gave Ext.P58 report was not examined, a comparison of the handwriting of A1 in Ext.P42 statement and the writings on Ext.P52 shows close resemblance to both the writings.
15. A1 had admitted that on the directions of A4 (Chottu) he had deposited six lakhs rupees (2 lakhs on 31-1-2008 and 4 lakhs on 3-3-2008 to Account No. 632205006014 who is the holder of Pan No. ADLPB8009L.
16. Ext.P42 statement dated 26-3-2008 and Ext.P57 further statement dated 9-6-2008 of A1 recorded under Section 67 of the N.D.P.S. Act were retracted only when A1 filed the bail application before this Court and not earlier. In the case of A2 and A3, they retracted Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:58:- Exts.P43 and P44 statements only during their cross- examination under Section 313 (1)(b) Cr.P.C. towards the fag end of the trial. I, therefore, fully endorse the observation of the trial judge that the said statements cannot be said to be products of any threat, inducement or promise so as to be eschewed from consideration. DRI officers cannot be treated as police officers within the meaning of Sec. 25 of the Evidence Act so as to exclude the confession made to them by A1 to A3 and hence their statements are not liable to be discarded. In Francis Stanley @ Stalin v. Intelligence Officer, NCB, Thiruvananthapuram - 2006 (13) SCC 210 it has been held that if the confession is found to be voluntary and free from pressure it can be accepted. The conduct of A1 to A3 in not retracting their confession goes a long way to suggest the voluntary nature of their confession. The Hon'ble Supreme Court has in Kanhailal v. Union of India - AIR 2008 SC 1044 held that a conviction can Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:59:- be maintained solely on the basis of a confession made under Section 67 of N.D.P.S. Act. It is well settled that a confession recorded by an officer of the Department of Revenue Intelligence is not hit by Sec. 21 of the Evidence Act since such officers are not police officers. (See Raj Kumar Karwal v. Union of India and Others - 1990 (2) SCC 409 = AIR 1991 SC 45 and Francis Stanley @ Stalin v. Intelligence Officer, Narcotic Control Bureau - AIR 2007 SC 794). Retraction of their confessional statements after a longtime by A1 to A3 renders such retraction unworthy of credence and the confessional statements can be said to have been voluntarily made . See M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence - 2003 (8) SCC 449. Even without the confession, there is intrinsic evidence to connect A1 to A3 with the traffic in the heroin seized in this case. The role of A3 was only to escort A2 safely from Rajasthan to Calicut for a reward Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:60:- whereas the role of A2 was to actually carry the heroin from Rajasthan to Calicut and hand it over to A1 who was procuring the same either for sale in North India or for export to the Middle East. The stand taken by A1 was one of total denial. But the evidence shows that A1 was in constructive possession of the heroin recovered from Homoeo Bhavan and Kolatheekal House. Since A1 has failed to account for his possession of the narcotic drug., the presumption under Section 54 of the N.D.P.S. Act is squarely attracted. The samples drawn from the bulk quantity of heroin were subjected to both quantitative and qualitative analysis.
17. The quantity of pure heroin in the 6.218 Kgs of powder recovered from Kolatheekal House, Edavannappara comes to 646.80 gms. Likewise, 5.178 Kgs. of the powder recovered from Homoeo Bhavan was containing 1310.630 gms of pure heroin. In the notification issued as S.O. 527 (E) dated 16-7-1996 by the Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:61:- Ministry of Finance, Department of Revenue, heroin figures at Serial No. 56. The small quantity fixed for heroin is 5 gms. and the commercial quantity for heroin is fixed at 250 gms. In the case on hand, the recoveries of heroin in pure form both from Homoeo Bhavan at Calicut and from Kolatheekal House, Edavannappara, Malappuram District were in excess of the commercial quantity. Heroin which is diacetylmorphine is an "opium derivative" as defined under Sec. 2 (xvi) of the N.D.P.S. Act. All opium derivatives fall under the definition of "manufactured drug" as given under Section 2 (xi) of the N.D.P.S. Act. Section 21 is the penal provision for manufactured drugs and preparations. All manufactured drugs are narcotic drugs the possession, sale purchase, transport, import inter-state etc. of which are prohibited under Section 8 (c) of the N.D.P.S. Act. Since the quantity of heroin involved in this case is commercial quantity, the appropriate penal provision attracted is Sec. Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:62:- 21 (c ) of the N..P.S. Act. A1 was procuring the total quantity of 11.396 kgs of heroin pursuant to the criminal conspiracy hatched. A1 was thus rightly convicted under Section 21 (c ) and 29 of the N.D.P.S. Act and the same is hereby confirmed. The role of A2 was in carrying the bulk quantity of heroin from Kotta in Rajasthan to Calicut by rail for eventual delivery to A1 who was the purchaser at Calicut. A2 was thus intentionally aiding the act of procuring the heroin by A1 pursuant to the criminal conspiracy hatched. A3 who is a railway employee was travelling along with A2 in order to ensure safe carriage of the narcotic drug from Kotta in Rajasthan to Calicut where A1 operates. So, A2 and A3 were rightly convicted for the offence punishable under Section 29 of the N.D.P.S. Act and the said conviction is hereby confirmed.
18. Now, coming to criminal Appeal No. 1183 of 2009 filed by the department, in the absence of clear cut Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:63:- evidence to show that A1 attempted to sell a portion of the 11.396 Kgs of heroin, a conviction of A1 under Section 28 of the N.D.P.S. Act was not permissible. It may be true that A2 and A3 had carried the narcotic drug from Rajasthan to Calicut in pursuance of the criminal conspiracy. Their previous possession of the heroin while transporting the same to Calicut is only inferential. But they have been each convicted under Section 29 of the N.D.P.S. Act and the same will suffice. Unlike the general penal law, N.D.P.S. Act seeks to punish a person even for making preparation to commit an offence under the Act. For attempts to commit offences under the Act also same punishment as is prescribed for the offence itself is sought to be inflicted.
19. What now remains to be considered is the question of adequacy or otherwise of the sentence imposed on A1 to A3. It is true that the court below has imposed only the minimum mandatory sentence of Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:64:- rigorous imprisonment for 10 years and pay a fine of Rs. 10,00,000/-. But A1 to A3 are all first offenders and penal servitude by way of incarceration for 10 years and a prohibitive fine as has been imposed by the court below, in my opinion, should serve as an effective punishment besides acting as an adequate deterrent and prophylactic. I am, therefore, not inclined to enhance the punishment awarded to A1 to A3.
In the result, these appeals are dismissed confirming the conviction entered and the sentence passed against A1 to A3.
Dated this the 17th day of December 2009.
V. RAMKUMAR, (JUDGE) ani.
Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:65:-