Madras High Court
Badrilal Sharma vs State By on 18 June, 2012
Author: R. Mala
Bench: R. Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.06.2012
CORAM:
THE HONOURABLE MS. JUSTICE R. MALA
Criminal Appeal Nos.814 of 2009 and
8, 33 & 40 of 2010
Badrilal Sharma .. Appellant/A4 (in Crl.A.No.814/2009)
Tofan Singh .. Appellant/A3 (in Crl.A.No.8/2010)
Babulal Jain .. Appellant/A1 (in Crl.A.No.33/2010)
Prem @ Kannan @ Sudeshwaran .. Appellant/A2 (in Crl.A.No.40/2010)
VS
State by
The Intelligence Officer
Narcotics Control Bureau
South Zonal Unit
Chennai-90. .. Respondent/Complainant (in all cases)
Criminal Appeal Nos.814 of 2009 & 33 of 2010 filed under Section 374(2) of Cr.P.C., against the judgment of conviction and sentence, dated 18.12.2009, made in C.C.No.55 of 2005 on the file of the Additional Special Court under NDPS Act, Chennai.
Criminal Appeal Nos.8 of 2010 & 40 of 2010 filed under Section 374(2) of Cr.P.C. r/w Section 36-B of NDPS Act, 1985, against the judgment of conviction and sentence, dated 18.12.2009, made in C.C.No.55 of 2005 on the file of the Additional Special Court under NDPS Act, Chennai.
For Appellant/A1 : Mr. N.R.Elango, senior counsel for
Mr.S.T.Raja for M/S.Ohm Sairam
in Crl.A.No.33 of 2010
For Appellant/A2 : Mr.R.C.Paul Kanagaraj in
Crl.A.No.40/2010
For Appellants/A3&A4 : Mr.B.Kumar, senior counsel for
Mr.T.S.Sasikumar in
Crl.A.Nos.814/2009 and 8/2010
For Respondent : Mr.N.P.Kumar, Spl. Public Prosecutor
(in all cases) for NCB cases.
C O M M O N J U D G M E N T
The appeals are arising out the judgment of conviction and sentence, dated 18.12.2009, made in C.C.No.55 of 2005, on the file of the Additional Special Court under N.D.P.S. Act, Chennai, whereby the accused 1 to 4 were convicted for the offences under Sections 8(c) r/w 21(c) and 29 of NDPS Act, 1985. Accused 1 to 4 were convicted for the offences under Section 8(c) r/w 21(c) of NDPS Act and sentenced them to undergo 10 years rigorous imprisonment each and imposed a fine of Rs.1,00,000/- each in default in payment to undergo rigorous imprisonment for one year each and further they were convicted for the offences under Section 8(c) r/w 29 of NDPS Act and sentenced to undergo ten years rigorous imprisonment each and to pay a fine of Rs.1,00,000/- each in default in payment to undergo one year rigorous imprisonment each.
2.The Intelligence Officer, NCB, Chennai, has lodged a complaint that the accused A1 to A4 and two absconding accused namely, Guddu Singh @ Vikram Singh & Ravi have entered into criminal conspiracy at Chennai, Nellore in Andhra Pradesh and Srilanka to procure, possess, transport and attempt to export out of India 5.250 kgs. of heroin, which came to be seized on 24.10.2004 at about 12.00 hours at G.N.T. Road, 100 feet road junction, Madhavaram from A1 to A4, who were travelling in White Ambassador car bearing Registration no.TN01K0923 proceeding towards Chennai, when it was intercepted by the NCB Officers. Hence, the charge sheet has been filed against the accused A1, A3 and A4 for the offences under Sections 8(c) r/w 21(c), 28 and 29 of NDPS Act, 1985 as amended by Act 9/2001 and against A2 for the offences under Sections 8(c) r/w 21C, 27A, 28 and 29 of NDPS Act, 1985 as amended by Act 9/2001 and under Section 3(3) of Passport Entry in India Act, 1920 and under Section 14 of the Foreigner Act, 1946.
3.Since the absconding accused namely, Guddu Singh @ Vikram Singh and Ravi were not able to be procured the case against them, the case was split up as new C.C.No.9 of 2007.
4.The prosecution case is based on the evidence let in by the prosecution witnesses, which are stated as follows:
(i) P.W.7-Aruldoss, who is working as Intelligence Officer, NCB, South Zone Unit, received information on 23.10.2004 at 9.00 p.m. and he recorded the information and submitted it to P.W.6/Gunabalan, Superintendent. The information is Ex.P72, in which, it was stated that one Prem @ Kannan @ Sudeshwaran resident of Nanganallur, Chennai, is procuring Narcotic Drugs from Guddu Singh resident of Rajasthan with the assistance of one Bapulal resident of Pattalam, Chennai, for trafficking it from Chennai to Srilanka and that Prem @ Kannan @ Sudeshwaran and Bapulal have visited Rajasthan and made arrangements for the supply of heroin and Guddusingh had sent 5 kgs. of heroin through his two persons, who were identified to Bapulal by Guddusingh and those two persons are arriving at Chennai on the next day by Jaipur Express and Bapulal and Kannan have planned to leave at 10.00 p.m. on 23.10.2004 to Nellore, Andhrapradesh, in a white Ambassador Car bearing Registration no.TN01K0923 to receive those two persons along with heroin and after they reach Chennai, Prem @ Kannan @ Sudeshwaran will receive the heroin and smuggle it out to Srilanka.
(ii) P.W.6/Gunabalan, P.W.7/Aruldoss and P.W.10/Sendhil Murugan made a discussion about the information on 23.10.2004 till 10.00 p.m. In Ex.P72-Information, P.W.6 made an endorsement giving order to proceed with the case and that has been noted by P.W.7 and P.W.10 as per Ex.P59. On 24.10.2004, at about 9.00 a.m., P.W.6, P.W.7 and P.W.10 and two other staff members viz., one Sepoy and Driver left NCB office in the Mini bus bearing Registration no.TN09C3113 and reached the scene of occurrence at 11.00 a.m. On the instruction of P.W.6, P.W.7 has procured two independent witnesses (i.e.) by name Gopi/P.W.8 and one Krishnamurthy. When P.W.6 to P.W.8, P.W.10 and Krishnamurthy were mounting surveillance, they noticed the Ambassador Car bearing Registration no.TN01K0923 and then, they intercepted the vehicle and showed their identity cards and introduced themselves to them. There were six passengers inside the car. In the front seat, there were two drivers namely, Satyakeerthi and Mariappan and next to driver Mariappan was A3 and in the back seat, A2/Prem @ Kannan @ Sudeshwaran of Srilanka was seated and next to him, A1/Bapulal of Chennai & A4/Badrilal Sharma were seated. The Officers disclosed about the information to them in Tamil and Hindi.
(iii) P.W.10 Sendhil Murugan, Intelligence Officer had explained about Section 50 of the NDPS Act to them in Hindi and P.W.7 explained the same provision in Tamil to them for which they opted to be searched by the officers themselves. Then the Officers enquired as to whether the accused had any Narcotic Drugs with them. Prem @ Kannan @ Sudeshwaran and Bapupal Jain, who seated on the back seat, took out one green colour bag from beneath their seat and handed it over to P.W.7 stating that it contained 5 kgs. of heroin. P.W.7 opening the bag found 4 white coloured cloth packets and on opening the same, four polythene bags containing brown colour powder, out of each, a small quantity was taken and tested with the field test kit and found that all answered positive for heroin. P.W.7 weighed all the 4 packets individually which were totally found to weigh about 5.250 kgs. with reasonable belief that the entire quantity was heroin. Heroin contained in four packets were marked as Exs.P1 to P4, which were packed, sealed with NCB II seal which are marked as M.O.5 to M.O.8 and out of each packet, two samples each of 5 grams was taken out and packed in small packets sealed and kept in polythene bags sealed with NCB seal No.II and marked as S1 to S8. S1, S3, S5 and S7 packets were sent for chemical analysis and the remnant of the sample returned back to the Court are marked as M.O.1 to M.O.4 and the untested samples S2, S4, S6 and S8 are marked as M.O.16 to M.O.19. The green colour bag and white cloth packets were kept in a light green paper packet and was sealed with NCB seal No.II marked as Ex.P5 which is M.O.9.
(iv) Prem @ Kannan @ Sudeshwaran was searched and one Nokia Cell Phone found from him was seized and placed in a brown colour packet sealed with NCB seal No.II and then marked as Ex.P6 which is M.O.10 and Indian currency of Rs.3,150/- seized from him was placed in a brown cover packet, sealed with NCB II seal and marked as Ex.P7 which is M.O.11. Four Tolgate receipts were also seized from him and were pasted in a separate sheet and was prepared as documents.
(v) When the person of Bapulal was searched, one Nokia cell phone with sim card and Indian currency of Rs.16,235/- found from him were seized. The Nokia cell phone with sim card was placed in a brown colour packet sealed with NCB seal No.II and was marked as Ex.P8 which is M.O.12. The Indian currency of Rs.16,235/- kept in a brown colour paper packet sealed with NCB seal No.II and marked as Ex.P9 which is M.O.13.
(vi) When Badrilal Sharma was searched, one Identity card, two second class train pass issued by Western Central Railway and Indian currency of Rs.2,150/- were found and seized from him. Indian currency of Rs.2,150/-, which kept in a brown colour packet sealed with NCB seal No.II, was marked as Ex.P10, which is M.O.14. Identity card and train passes were pasted in a separate sheet and prepared as document.
(vii) When Tofan Singh was searched, Indian currency of Rs.680/- was found and seized from him and kept in a brown colour packet sealed with NCB seal No.II and the same was marked as Ex.P11 which is M.O.15. The two second class train tickets from Shamgarh to Chennai were also seized from him. The same were pasted in a separate sheet and prepared as document.
(viii) The two drivers Satyakeerthi and Mariappan were searched and no documents or objects were seized from them. When the drivers Satyakeerthi and Mariappan were enquired, they stated that they were in no way connected with the contraband seized and that they have no knowledge about it.
(ix) Mahazar Ex.P60 was drawn on the spot by P.W.7 and it was completed at 6.00 p.m. The contents of the mahazar was explained to all in Tamil and Hindi. P.W.10 Intelligence Officer, Sendhil Murugan explained the same in Hindi to the accused and the 2 independent witnesses, 4 accused, the seizure officer, P.W.7 and Superintendent. P.W.8 have signed in all the properties Exs.P1 to P11 and samples S1 to S8 and in mahazar and all other incriminating documents seized. Two train tickets seized from A3 were marked as Exs.P61 and P62. Identity card of Badrilal Sharma and railway second class free pass belonged to his wife were marked as Exs.P63 to P65. Three receipts issued by Swarna Toll Way and one receipt issued by KBPI toll plaza Karanodai affixed on the fourth sheet of the Annexure were marked as Ex.P66.
(x) The copy of the mahazar was supplied to all the four persons and their signatures were obtained for receiving the same. On instructions by P.W.6, P.W.7 issued summons to the four accused and the two drivers Satyakeerthi and Mariappan to appear on 24.10.2004, at 7.00 p.m. in the NCB Office. Copy of the summons issued to A1 to A4 were marked as Exs.P1, P45, P9 and P67 respectively. Copy of the summons issued to the Drivers Mariappan and Satyakeerthi were marked as Exs.P68 and P69 respectively. All the 4 accused and 2 drivers accompanied P.W.6 and P.W.7 to the NCB office. P.W.6 and P.W.7 went to their office with the seized articles, documents and mahazar and handed them over to P.W.5, Intelligence Officer. On 25.10.2004, between 5.30 to 6.00 p.m., P.W.7 submitted Section 57 Report Ex.P70 to P.W.6 and P.W.6 has made an endorsement as 'seen' on it. Then, P.W.6 asked P.W.3 S.Karthikeyan, Intelligence Officer, to enquire A2 and issued instruction on the copy of the summons itself.
(xi) P.W.3 enquired A2 under Section 67 of NDPS Act and A2 gave voluntary statement in his own handwriting Ex.P46 and he has signed in all the pages and P.W.3 has also signed in all the pages. In the statement, he furnished his residential address and hence P.W.3 along with his team members proceeded to the address given by A2 along with two independent witnesses and when he knocked D.No.1, Nakeeran 5th Street, Vadakku Ram Nagar, Madipakkam, Chennai-91, it was opened by one lady by name Sangeetha, who is the relative of A2, was staying with him. P.W.3 and the Officers introduced themselves showing their identity cards explained to her about the seizure effected already and explained their intention to search the house. When enquired about the belongings of A2, she showed one cupboard. One brown cover was found during the search. In that cover, one Srilankan passport and one identity card issued by the Srilankan Government to A2 were found and these documents were seized and detailed mahazar Ex.P47 was drawn on the spot and it was signed by P.W.3 and the two independent witnesses Sangeetha and one lady Sepoy Miss Daivarani. The copy of the mahazar Ex.P47 was given to A2. The seized passport is Ex.P48 and Identity card is Ex.P49. Based on the statement Ex.P46 given by A2, A2 was arrested on 25.10.2004, at 5.30 p.m., after explaining to him the grounds for arrest and after serving the arrest memo Ex.P50 to him. A2 received the same after affixing his signature. A2 and other documents seized were handed over to P.W.5, Intelligence Officer, T.Sridhar. Thereafter, on 26.10.2004, at 12.00 hours, P.W.3 submitted Ex.P51 Section 57 report to P.W.6, Gunabalan, Superintendent.
(xii) P.W.6 directed P.W.1, Shivakumar, Intelligence Officer, to enquire A1 and he has made an endorsement on the copy of the summons and P.W.1 has also appended his signatures in Ex.P1. P.W.1 examined A1 and A1 gave voluntary statement on his own volition in Hindi in his own handwriting mentioning his role in the offence. The voluntary statement given by A1 was marked as Ex.P2 and its free English translation was marked as Ex.P76. A1 and P.W.1 have signed in all the pages of the statement. A1 and P.W.1 went to the office of A1 and search was conducted in the presence of independent witnesses and mahazar Ex.P3 was drawn on the spot for the recovery of telephone bills and railway ticket which were annexed with the Mahazar. The seized railway ticket was marked as Ex.P4. Statement of A/C. Tata Indicom bill consisting of 7 pages for the months of March, April, June and September 2004 was marked as Ex.P5. After returning to the office, A1 was further examined and he gave further statement in Hindi on 25.10.2004, which is Ex.P6, of which the English translation is Ex.P77 and in Ex.P6, A1 and P.W.1 have signed. Based on the material objects seized and voluntary statement given by A1 and the documents seized, A1 was placed under arrest after informing him the grounds of arrest in Hindi and after serving a copy of the arrest memo which is Ex.P7. Ex.P8-Section 57 report was submitted to P.W.6 and P.W.6 has made an endorsement as 'seen'. Then P.W.1 handed over the accused and the documents to the remanding officer, P.W.5.
(xiii) Thereafter, P.W.6 directed P.W.2, R.Murugan, Intelligence Officer, to enquire A3 on the copy of the summons which is Ex.P9. P.W.2 enquired A3 after explaining to him about Section 67 of the NDPS Act in Hindi and since A3 does not know to write in Hindi, P.W.2 recorded his statement in Hindi as deposed by him. A3 has admitted his guilt in the statement. Statement of A3 is Ex.P10 and in all pages, P.W.2 and A3 have signed. The English translation of Ex.P10 is Ex.P78. On 25.10.2004, at 10.00 a.m., A3 was placed under arrest, after going through the mahazar and the material objects seized. A copy of the arrest memo Ex.P11 was served to A3 and he was arrested, after explaining the grounds of arrest in Hindi. A3 along with connected documents was handed over to P.W.5, Sridhar, Intelligence Officer. On 26.10.2004, at 16.00 hours, Ex.P12-Section 57 report was submitted by P.W.2 to P.W.6, Gunabalan, Superintendent.
(xiv) P.W.6 directed P.W.10, Sendhil Murugan, Intelligence Officer, to enquire A4/Badrilal sharma and the instructions are on the copy of summons which is Ex.P67. P.W.10 enquired A4 about his involvement in the trafficking of Narcotic Drug. A4 gave his voluntary statement Ex.P74 in his own handwriting in Hindi. He has affixed his signature in all the pages and P.W.10 has also counter signed the English translation. The free English translation of Ex.P74 is also annexed with the complaint which is Ex.P79. Based on the voluntary statement and material objects and the records recovered, A4 was placed under arrest on 25.10.2004, at 10.00 hours, after informing him about the grounds of arrest in Hindi and the copy of the arrest memo is Ex.P75 and A4 has also signed the same. Thereafter, the documents and the accused were handed over to P.W.5. P.W.10 submitted his Section 57 report under Ex.P71 to P.W.6.
(xv) P.W.6 directed P.W.9, Murugesan, Intelligence Officer, to enquire the Drivers Mariappan and Satyakeerthy and appended his signature on the copy of the summons issued to Mariappan Ex.P68 and Satyakeerthy Ex.P69. P.W.9 has also signed in the summons. P.W.9 explained Section 67 of NDPS Act to both the drivers and Satyakeerthy gave his voluntary statement in his own handwriting Ex.P73 and Mariappan gave his voluntary statement written by Satyakeerthy as dictated by Mariappan, since Mariappan does not know to write Tamil or English. Statement of driver Mariappan is Ex.P81. P.W.5 produced all the four accused for remand before the learned Judicial Magistrate at Saidapet and submitted the remand application Ex.P55 and all the four accused were lodged in the Central prison at Chennai. The seized properties and samples were submitted for safe custody through forwarding memo Ex.P56 to P.W.6, who issued go-down receipt Ex.P57 which contain his signature. Thereafter, P.W.2 took up the matter for investigation.
(xvi) On 4.11.2004, P.W.6 has sent a letter to the General Manager, BSNL Garoth, Madhya Pradesh, calling for subscriber particulars, call in and call out particulars in the telephone number 07425-284050 for the period from 01.08.2004 to 31.10.2004 and the letter is Ex.P13. On the same date, another letter Ex.P14 was sent to the General Manager, Customer care, M/S. Airtel Communication, Chennai, calling for subscriber particulars in the mobile No.9840570534 and 9840670084 for the period from 01.08.2004 to 24.10.2004. On the same date, another letter Ex.P15 was sent by P.W.6 to Tata Indicom, Chennai, calling for subscriber details and call details in respect of Telephone No.54949236 for the period from 01.08.2004 to 24.10.2004. P.W.6 sent Ex.P20 letter to the Chief Commercial Manager, Western Railway, Mumbai, calling for particulars for the tickets with PNR No.840 7161615 and ticket number 87880752 three tier A.C. on 25.11.2004. P.W.6 received Ex.P21 reply and in turn, handed over the same to P.W.2. He also sent a letter Ex.P34 calling for the particulars in respect of PNR number and he also sent remainder to Airtel Communications, Chennai, which is Ex.P35. P.W.2 received a letter from the Zonal Director, NCB, Mumbai, addressed to Zonal Director NCB, Chennai, dated 11.03.2005, with a report enclosed with it dated 01.03.2005 from D.I.G. (Narcotics Wing), Indore (i.e.) Ex.P36 along with Hindi version and free English translation.
(xvii) On 15.03.2005, a copy of the letter from Deputy C.C.M. (PM) addressed to Chief Commercial Manager (PM), Central Railway, Mumbai, for furnishing PNR history of 3-AC-8407161615 was sent by P.W.2 which is Ex.P39. Reply letter is Ex.P40. The English translation of Hindi annexure in Ex.P40 is Ex.P80. A letter Ex.P41 was received from the Chief Commercial Manager, Central Railway, Mumbai dated 17.03.2005 addressed to Superintendent, NCB, south zone, Chennai. A letter Ex.P42 was received from the Zonal Director, Jodhpur, addressed to the Zonal Director, NCB, Chennai, dated 17.03.2005 enclosing the mahazar regarding house search of Badrilal Sharma with free English translation copy. The copy of letter Ex.P43 dated 23.03.2005 was received from the Deputy Director NCB, Mumbai, addressed to IGP, Bhopal, Madhya Pradesh, the Telephone bills seized from the residence of A1 disclosed that he was in touch with the absconding accused Guddu Singh.
(xviii) P.W.2 sent Ex.P16 letter to the Zonal Director, NCB, Jodhpur, Zonal Unit, Jodhpur requesting the apprehension of Guddusingh and to cause house search of Badrilal Sharma. He also sent Ex.P17 another letter dated 4.11.2004 requesting him to cause house search of Tofan singh. He sent Ex.P18 letter to PNP Colombo for verification of antecedents of the accused Prem @ Kannan @ Sudeshwaran. On 10.11.2004, P.W.2 received a letter from Zonal Director, NCB, Mumbai, addressed to IGP, Narcotic Wing, Bhopal, which is Ex.P19. He also received another letter Ex.P21 from BSNL, Shamgarh with the call analysis. It was evident that the telephone No.07425-284050 was frequently in touch with A1 and A2 mobile numbers. On 30.11.2004, P.W.2 received a letter from Deputy Director, NCB, New Delhi, addressed to PNP, Colombo and the copy of the letter is Ex.P22. P.W.2 received Ex.P23 letter from Zonal Director, NCB, Jodhpur, addressed to Director General, NCB, New Delhi on 13.12.2004. On 15.12.2004, Ex.P24 letter was sent to the Zonal Director, NCB, Mumbai, for apprehending Guddu Singh. Copy of the letter Ex.P25 from Zonal Director, NCB, Mumbai, addressed to IGP, Narcotic Wing, Bhopal, Madhya Pradesh on 31.12.2004 was received by P.W.2 along with a copy of the letter in Hindi dated 01.12.2004 from IGP, Narcotic Wing, Bhopal, M.P. Section 67 summons Ex.P26 was sent to Krishnamurthy on 02.02.2005 by post by P.W.2 on the same date.
(xix) Another summons under Section 67 of NDPS Act was sent to Gopi on 16.02.2005 to appear before P.W.2 on the same date at 11 'O clock which is Ex.P27. In turn Gopi acknowledged the same and appeared before P.W.2 and gave his voluntary statement in his own handwriting Ex.P28 on which Gopi and P.W.2 have signed on all the pages. The summons dated 03.03.2005 served to C.Krishnamurthy for his appearance at 6.00 p.m. on the same date was also acknowledged by C.Krishnamurthy which is Ex.P29, who appeared before P.W.2 on the same date and gave his voluntary statement in his own handwriting which is Ex.P30 and on all pages, both Krishnamurthy and P.W.2 have affixed their signatures. On 11.03.2005, P.W.2 sent a letter to the Zonal Director, Jodhpur to cause search of Badrilal Sharma's house and the copy of the reply is Ex.P31. Another letter to the Zonal Director, NCB, Mumbai, was sent by Zonal Director, NCB, South Zone, Chennai, to cause search of Tofan Singh's house, which is Ex.P32. Another letter dated 11.03.2005, Ex.P33 was sent to M/S. Tata Tele Services Ltd., Chennai, to provide call in and call out particulars of telephone number 54949236 for the period from 1.8.2004 to 24.10.2004.
(xx) P.W.5 submitted a memo for submission of properties Ex.P58 on 2.11.2004 before Principal Special Judge, Special Court under E.C. and NDPS Act, Chennai along with the properties. Memo for submission of properties is Ex.P55. Item Nos.1 to 11 were returned to NCB for safe custody. Samples S1, S3, S5 and S7 were sent along with Court letter to Deputy Chief Chemist, Customs House, Chennai. The test memo filed with memo for submission of properties is Ex.P53 and the acknowledgment given by the Customs Lab is Ex.P52.
(xxi) P.W.4, Saraswathy Chakravarthy, working as Chemical Examiner in the Customs house laboratory at Chennai received 4 samples along with the letter from the Court and the test memo on 3.11.2004 from P.W.5, Intelligence Officer. There were three NCB seals and one Court seal affixed on each sample and all the seals were found in proper condition and were verified with the facsimile seal and were found to be correct and proper. The four sample packets marked as S1, S3, S5 and S7 were entered in the Laboratory Register as Nos.717 to 720. The superior Officer has allotted these four samples to P.W.4 for chemical analysis. Each of the four samples answered the test for the presence of di acetyle morphine (heroin). The percentage of di acetyl morphine is also mentioned in Ex.P54 chemical analysis report dated 29.03.2005. The letter received from the Court by the lab is Ex.P52. The remnant sample packets were signed by the chemical examiner and were returned along with the chemical analysis report Ex.P54. P.W.5 after completing the investigation, has filed the complaint under Sections 8(c) r/w 21(c), 28, 29, 27A of NDPS Act and Sections 3(3) of passport Entry into India Act, 1920 and Section 14 of Foreigners Act, 1946 against four accused and two absconding accused on 15.04.2005, which is Ex.P44.
(xxii) From the evidence adduced by the prosecution, the incriminating evidence were posed before the accused as per Section 313 Cr.P.C. The accused denied the same. On the side of the defence, D.W.1 was examined to prove that A1 was at his home during September and October 2004 and A1 was arrested and other accused had never contacted A1 over phone at any point of time. D.W.2-Dr.Somasundaram has recommended A1 for treatment for paralysis at Royapettah Hospital and his medical records containing 21 pages for treatment from January 2008 to 25.09.2008, which is Ex.D1.
5.During the course of trial, on the side of prosecution, P.W.1 to P.W.10 were examined and Exs.P1 to P81 were marked and M.Os.1 to 19 were produced. After examining the witnesses on the side of prosecution and marking documents, the Special Court, under Section 313 Cr.P.C., posed incriminating evidence against the accused, which was denied by the accused. On the side of the accused, D.W.1 and D.W.2 were examined and Ex.D1 was marked.
6.After considering the oral and documentary evidence, the Special Court convicted and sentenced the appellants/A1 to A4 as indicated above. Against the same, the present Criminal Appeals have been separately filed by the appellants/A1 to A4.
7.Challenging the conviction and sentence passed by the Special Court, Mr. N.R.Elango, learned senior counsel for M/S.Ohm Sairam for the appellant (A1) in Crl.A.No.33 of 2010 would make the following submissions:
(i) Non compliance of Sections 42 and 57 of NDPS Act is fatal to the case of the prosecution.
(ii) Belated arrest and non compliance of Section 50 of NDPS Act.
(iii) Statement under Section 67 is not reliable. Marking of English translation of Section 67 statement, without following the procedure is fatal to the case of the prosecution.
(iv) Non seizure of Car and non examination of Drivers are fatal to the case of the prosecution.
(v) Non-examination of independent witness.
(vi) Even though P.W.8 an independent witness was examined, he was failed to identify the accused.
He would further submit that A1 has been falsely implicated in this case and he has been languishing in jail for more than 8 long years and hence, the view favouring to the accused alone has to be taken into consideration. Therefore, he prayed for the acquittal of A1. To substantiate the same, he relied upon the following decisions:
(1)2011 (1) SCC 609 (Vijaysinh Chandubha Jadeja v. State of Gujarat) (2)2012 (1) SCC 555 (Nirmal singh v. Inspector of Customs) (3)2008 (16) SCC 417 (Noor Aga v. State of Punjab) (4)2010 (1) MWN Crime 287 (Mohammed Jameen Munawar and others v. Intelligence Officer, NCB, South Zone, Chennai) (5) (2009) 12 SCC 161 (Union of India v. Bal Mukund and others) (6) (2012) 5 SCC 226 (Myla Venkateswarlu v. State of Andhra Pradesh)
8. Mr.R.C. Paul Kanagaraj, learned counsel for A2 in Crl.A.No.40 of 2010, would submit that seizure of bag has not been proved by the prosecution beyond reasonable doubt. The independent witness did not mention the quantity of the contraband seized by the respondent and did not support the case of the prosecution. Non examination of other mahazar witnesses by name Krishnamurthy is fatal to the case of the prosecution. The mandatory provision of Sections 42, 50 and 67 are not complied with. The arrest is only a drama. The prosecution has failed to prove that the property seized alone are sent for chemical analysis. He further submitted that the appellant/A2 has not committed any offence and he has only made preparation. So he can be convicted only under Section 30 of NDPS Act. Already, A2 has been languishing in jail for 7 years and 8 months. Hence, he prayed for acquittal of A2 or the sentence imposed on him may be modified to one from 10 years to 5 years. To substantiate the same, he also relied upon various judgments of Apex Court.
9.Mr.B.Kumar, learned senior counsel appearing for A3 and A4 in Crl.A.Nos.814 of 2009 and 8 of 2010 would submit that the names of A3 and A4 were not mentioned in the information report, because of the enmity between NCB officers and the appellants, a false case has been foisted against them. The train tickets used by the appellants being Exs.P61 and P62 are unreserved tickets and subsequently, it was changed to reservation tickets, which was not proved and even in the ticket produced, the names of the appellants were not found. He further submitted that contraband was only seized from A1 not from the appellants/A3 and A4. The appellants/A3 and A4 are travelling along with A1 and they are innocent. Section 67 statements of A3 and A4 become inadmissible in evidence. Independent witness P.W.8 did not identify any of the accused. But all the above factum have not been considered by the Special Court. Hence, he prayed for acquittal of A3 and A4. He also relied upon various judgments of Apex Court.
10.Resisting the same, learned Special Public Prosecutor Mr.N.P.Kumar for NCB cases, would submit that the provision of Sections 42, 50 and 67 of NDPS Act have been properly complied with. Even though charges have been levelled against the accused for several penal provisions, the accused were convicted only for the offence under Sections 8(c) r/w 21(c) and 29 of NDPS Act. In other aspects, they were acquitted. It is further submitted that the Special Court considered all the aspects in proper perspective and hence, the judgment of conviction and sentence passed by the Special Court does not suffer any illegality or infirmity. Therefore, he prayed for dismissal of the appeals. To substantiate the same, he relied upon various judgments of Apex Court.
11.Considered the rival submissions made on both sides and the materials available on record and also perused the written statements filed by both sides.
12.Now this Court has to consider the following points:
(1)Whether Section 50 of NDPS Act is complied with or not?
(2) Whether the provision of Section 42 of NDPS Act is complied with or not?
(3) Whether non examination of Drivers and non seizure of vehicle/car are fatal to the case of the prosecution?
(4) Whether Section 67 statement of the accused is reliable?
(5)Whether A2 is entitled to invoke Section 30 of NDPS Act?
(6) Whether conviction and sentence passed by the trial Court is sustainable?
I. Compliance of Section 50 of NDPS Act:
13.Learned counsel appearing for the appellants would mainly focus upon their arguments that the respondent has not complied with Section 50 of NDPS Act, which is fatal to the case of the prosecution. To substantiate the same, learned senior counsel appearing for A1, A3 and A4, relied upon the following judgments of Apex Court.
(i) 2012 (1) SCC 555 (Nirmal singh v. Inspector of Customs), in para-13 and 15, it is stated as follows:
"13. .. .. The Constitution Bench clearly stated that a consent memo could not be said to be such information as the provisions of Section 50 of the Act were mandatory and strict compliance was called for and any deviation therefrom would vitiate the prosecution. It was further held that it was not necessary that this information should be in a written form but the information had to be conveyed in some form or manner which would depend on the facts of the case.
14. ... .. ..
15.We also see that the Division Bench in Kanahiya Lal's case had not examined the principles and the concepts underlying Section 25 of the Evidence Act, 1872 vis.-a-vis Section 108 of the Customs Act and the powers of a Customs Officer who could investigate and bring for trial an accused in a narcotic matter. The said case relied exclusively on the judgment in Raj Kumar case. The latest judgment in point of time is Noor Aga's case which has dealt very elaborately with this matter. We thus feel it would be proper for us to follow the ratio of the judgment in Noor Aga's case particularly as the provisions of Section 50 of the Act which are mandatory have also not been complied with. "
(ii) (2011) 1 SCC 609 (Vijaysinh Chandubha Jadeja v. State of Gujarat), in para-29 and 32, it reads as follows:
"29.In view of the foregoing discussion, we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.
32.We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well."
(iii) In (2012) 5 SCC 226 (Myla Venkateswarlu v. State of Andhra Pradesh), he submitted that non compliance of Section 50 is fatal to the case of the prosecution and he culled out para-17 to 19 of the above judgment, which are extracted hereunder:
"17. At the relevant time, PW-3 CI Koteswara Rao was working as Inspector of Police. It is this witness who had received the information about the illegal sale of Ganja at Koneru Bazar. On receiving the information, he proceeded to Koneru Bazar along with PW-1, PW-2 and another police constable. He has corroborated PW-1 and PW-2 as regards the apprehension of the appellant, A1 and A2. He has stated that the appellant, A1 and A2 revealed their names and identity. According to him, A1 produced packets containing Ganja. Then he told him that if he wanted another gazetted officer, he will bring him. So far as A2 and the appellant are concerned, he has stated that they produced the packets containing Ganja. Thereafter, he revealed to them that they have a right to have another gazetted officer in addition to him to which they replied that his presence was sufficient.
18.PW-3 has thus come out with a new story viz. the appellant, A1 and A2 took out the Ganja packets from their pockets and, thereafter, he told the appellant, A1 and A2 that they had a right to have another gazetted officer in addition to him. This story that the accused themselves took out the Ganja packets from their pockets runs contrary to the version of PW-1 and PW-2 and, therefore, it does not inspire confidence. If the accused voluntarily took out ganja packets, there was no question of conducting search in the presence of a gazetted officer or a Magistrate. But, assuming that this right can be communicated to a suspect after the seizure and assuming the evidence of this witness to be true, it still does not indicate that the requirement of Section 50(1) of the NDPS Act was fulfilled. There is no clear communication to the accused that they had a right to be searched in the presence of a gazetted officer or a Magistrate.
19.As we have already noted, the concept of substantial compliance cannot be read into the provisions of Section 50(1) of the NDPS Act. We, therefore, have no hesitation in concluding that in this case, there is a breach of Section 50(1) of the NDPS Act. Since the conviction of the appellant is solely based on possession of ganja recovered from him, it will have to be set aside.
But the above citation is not applicable to the facts of the present case. As per Section 50 of NDPS Act, since the contraband has been seized in the bag, no person search for seizure of contraband has been made. So Section 50 would not be attracted.
14.Resisting the same, Mr.N.P.Kumar, learned Special Public Prosecutor for NCB cases relied upon the following judgments.
(i) 2010 (3) SCC 746 (Ajmer Singh v. State of Haryana), in para-15 to 18, it is stated as follows:
"15. The learned counsel for the appellant contended that the provision of Section 50 of the Act would also apply, while searching the bag, brief case etc., carried by the person and its non-compliance would be fatal to the proceedings initiated under the Act. We find no merit in the contention of the learned counsel. It requires to be noticed that the question of compliance or non-compliance of Section 50 of the N.D.P.S. Act is relevant only where search of a person is involved and the said Section is not applicable nor attracted where no search of a person is involved. Search and recovery from a bag, brief case, container, etc., does not come within the ambit of Section 50 of the N.D.P.S. Act, because firstly, Section 50 expressly speaks of search of person only. Secondly, the Section speaks of taking of the person to be searched by the Gazetted Officer or Magistrate for the purpose of search. Thirdly, this issue in our considered opinion is no more res-integra in view of the observations made by this court in the case of Madan Lal vs. State of Himachal Pradesh 2003 Crl.L.J. 3868. The Court has observed:
"16.A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag or premises (See Kalema Tumba vs. State of Maharashtra and Anr. (JT 1999 (8) SC 293), State of Punjab vs. Baldev Singh (JT 1994 (4) SC 595), Gurbax Singh vs. State of Haryana (2001 (3) SCC 28). The language of section is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicles, or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh's case. Above being the position, the contention regarding non-compliance with Section 50 of the Act is also without any substance."
16. In State of Himachal Pradesh vs. Pawan Kumar, [2005 4 SCC 350], this Court has stated:
"11.A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body or a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word 'person' occurring in Section 50 of the Act."
(emphasis in original)
17.After discussion on the interpretation of the word `person', this Court concluded:
"14. .. .. that the provisions of section 50 will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container, etc. which (the accused) may be carrying."
The Court further observed :
"27. .. .. In view of the discussion made earlier, Section 50 of the Act can have no application on the facts and circumstances of the present case as opium was allegedly recovered from the bag, which was being carried by the accused."
18. It appears from the evidence on record that the accused was confronted by ASI Maya Ram and other police officials on 24.1.1996 and he was informed that he has the right to either be searched before the Gazetted Officer or before a Magistrate and the accused chose the later. Thereafter, the accused was taken to the DSP, Pehowa, Shri Paramjit Singh Ahalawat and as directed by him, the bag carried by accused on his shoulder was searched and the charas was found in that bag. Thus, applying the interpretation of the word "search of person" as laid down by this court in the decision mentioned above, to facts of present case, it is clear that the compliance with Section 50 of the Act is not required. Therefore, the search conducted by the investigating officer and the evidence collected thereby, is not illegal. Consequently, we do not find any merit in the contention of the learned counsel of the appellant as regards the non-compliance with Section 50 of the Act."
It was held by the Supreme Court that Section 50 of NDPS Act applies only where personal search of a person is involved. For search of bag, brief case, container etc. carried by the accused persons compliance under Section 50 is not required.
(ii) 2011 (3) SCC 521 (Jarnail Singh v. State of Punjab), in para-15 and 16, it is stated as follows:
"15.The next submission made by Mr.Ujjal Singh is that there has been non-compliance with Section 50 of the NDPS Act, in that requisite option was not given to the appellant, as to, whether he wanted to be searched in the presence of a gazetted officer or a Magistrate. We are unable to accept the aforesaid submission. Inspector Ram Pal (PW4) has clearly stated that the option was duly given to the appellant. The appellant had, in fact, signed on the consent statement expressing his confidence to be searched in presence of the aforesaid witness. Similarly, Satpal Singh, PW5 has also stated that before effecting the search, the appellant-accused was given the necessary option as to whether he wanted to be searched before a gazetted officer or a Magistrate. This witness also stated that the appellant reposed his confidence in Inspector Rampal. In such circumstances, it cannot be held that there was non-compliance with Section 50 of the NDPS Act.
16.This apart, it is accepted that the narcotic/opium i.e. 1kg and 750 gm was recovered from the bag (thaili) which was being carried by the appellant. In such circumstances, Section 50 would not be applicable. The aforesaid section can be invoked only in cases where the drug/narcotic/NDPS substance is recovered as a consequence of the body search of the accused. In case, the recovery of the narcotic is made from a container being carried by the individual, the provisions of Section 50 would not be attracted. "
It was held by the Supreme Court that in case, recovery of narcotic is made from container being carried by individual, provisions of Section 50 would not be attracted.
(iii) 2002 (8) SCC 7 (Narayanaswamy Ravishankar v. Assistant Director, Directorate of Revenue Intelligence) which was decided by the Larger Bench, in para-7, it is held as follows:
"7. .. .. no search or seizure was conducted on the person of the accused and, therefore, the provisions of Section 50 of the NDPS Act were not attracted. .. "
15.Now it is appropriate to incorporate Section 50 of NDPS Act, which reads as follows:
"50. Conditions under which search of persons shall be conducted.
(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973.
(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within a seventy-two hours send a copy thereof to his immediate official superior."
16.Considering the decisions of the Apex Court reported in 2002 (8) SCC 7 (Narayanaswamy Ravishankar v. Assistant Director, Directorate of Revenue Intelligence), 2010 (3) SCC 746 (Ajmer Singh v. State of Haryana) and 2011 (3) SCC 521 (Jarnail Singh v. State of Punjab), Section 50 of NDPS Act can be invoked only in cases where drug/narcotic substance is recovered as a consequence of body search of the accused. In case, recovery of narcotic drug is made from the container being carried by individual, provisions of Section 50 would not be attracted. Considering the above dictum along with the facts of the present case, the evidence of P.W.7 would show that after inspection of the bag, he had explained Section 50 of the NDPS Act to the accused/appellants. Since the contraband has been seized from the bag and samples were collected from the bag, Section 50 of NDPS Act is not attracted. The learned Special Judge in para-32 of its Judgment, considered the above aspect in proper perspective.
17. On 23.10.2004, at 9.00 p.m., when P.W.7 Aruldoss was working as Intelligence Officer in NDPS Division, he received an information from the informant and he recorded the same at 9.00 p.m. and handed over the same to P.W.6 Gunabalan Superintendent. Then P.W.6 called P.W.10 Sendhil murugan, to take necessary action after making endorsement in the report and that report is Ex.P72. In pursuance of Ex.P72, on 24.10.2004, at 9.00 a.m., P.W.6, P.W.7, P.W.10 and other two staff and one Sepoy with Drivers left NCB office in the Department vehicle mini bus bearing Registration No.TN09C3113 and reached GNT road, 100 feet road, Madhavaram, at about 11.00 a.m. As per the instruction given by P.W.6 Gunabalan Superintendent, P.W.7 Aruldoss, Intelligence Officer procured two independent witnesses P.W.8 Gopi and one Krishnamurthy and they were introduced to NCB Officers and P.W.7 briefed about the information and action to be taken to the independent witnesses. From 11.15 onwards, Officers along with independent witnesses mounted surveillance on the road watching for the Ambassador car mentioned in the information report. About 12 'O clock, P.W.6, P.W.7 and P.W.10 and other Officers, independent witnesses noticed the Ambassador car mentioned in the information report approaching Chennai direction and they stopped the vehicle in the signal. P.W.6 stated that P.W.7 has informed the occupants of the car about the information and intention to search the persons as well as the vehicle and informed them about Section 50 of NDPS Act. The occupants of the car informed the Officers that they could be searched by the Officers available by there. When P.W.7 asked whether they have any narcotic drugs for which, A1 and A2 handed over the dark green bag military cloth type Rexene bag and informed that it contained about 5 kgs. of heroin. After that only, P.W.7 along with their assistance opened and examined the bag and found four packets of brown colour polythene bags and took out small quantity from each packets and tested with field kit available with them and all the four tested answered positive for heroin. Totally they were weighing 5.250 kgs. So the evidence of P.W.6 corroborated by P.W.7 and P.W.10 would show that as soon as they informed that they were going to conduct a search, A1 and A2 handed over the bag, which contains 5.250 kgs. of heroin.
18.As already stated that as per the dictum of the Apex Court reported in 2011 (3) SCC 521 (Jarnail Singh v. State of Punjab), there is no need to invoke Section 50 of NDPS Act, no search made to the persons. Since drug has been seized from the bag and handed over by A1 and A2, there is no person search. So Section 50 of NDPS Act does not arise. In such circumstances, I am of the view, the learned Special Judge considered this aspect in para-32 of its judgment and came to the correct conclusion. Therefore, the arguments advanced by the learned counsel for the appellants that violation of Section 50 of NDPS Act is fatal to the case of the prosecution does not merit acceptance.
II. Compliance of Section 42 of NDPS Act:
19.Now this Court has to decide the second limb of argument advanced by the learned counsel for the appellants that Section 42 of the NDPS Act is not complied with. It is appropriate to incorporate Section 42 of this Act, which reads as follows:
"Section 42: Power of entry, seizure and arrest without warrant or authorisation:
(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotic, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in his behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an office punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,--
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act; and
(d) detain and search, and if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior."
20.Learned counsel appearing for the appellants would submit that as soon as P.W.7-Arul Doss received information, he reduced in writing (i.e.) Ex.P72. As per Section 42(2) of the Act, empowered officer who takes down any information in writing or records the grounds under the proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. He further submitted that P.W.7 has not followed the mandatory provision of Section 42. So it would adversely affect the case of prosecution.
21.At this juncture, it is appropriate to consider the evidence of P.W.6, P.W.7 and P.W.10. P.W.7 in his chief examination itself, stated that on 23.10.2004, when he was in official work at 9.00 p.m., he received information from the informant over phone and he reduced in writing at 9.00 p.m. Immediately, he submitted the information as a report to his higher official P.W.6, Gunabalan and P.W.6 informed the same to P.W.10 Sendhil Murugan, Intelligence Officer and directed him to take necessary action on the basis of the report submitted by P.W.7. So that has been clearly proved that P.W.7 as soon as received the information, he reduced in writing and submitted the report to his superior P.W.6. It shows that he followed the provisions of Section 42(2) of NDPS Act. In the instant case, immediately, P.W.7 sent the report to P.W.6 on the same date. Furthermore, as per the evidence of P.W.1, on 24.10.2004, at 7.00 p.m., P.W.6 called P.W.1 K.Shivakumar, who is working as Intelligence Officer in the Directorate General of Central Excise in South Zone, Chennai, and informed about the seizure of 5.250 kgs. of heroin from Madhavaram and in that connection, he introduced a person, who is A1, which proved that the information received was informed to the higher official within 72 hours. It would also prove that seizure was also informed to the superior in accordance with law. Moreover, the evidence of P.W.1, P.W.6, P.W.7, P.W.10 was confirmed by P.W.8/Gopi, who is an independent witness.
22.As per the evidence of P.W.8/Gopi, on 24.10.2004, at 12.00 noon, he was requested to be the witness for seizure and in his presence, the NCB Officers seized contraband and he also signed on all the papers. So there is no reason for discarding the evidence of P.W.8. So the evidence of P.W.1, P.W.6 to P.W.8 and P.W.10 proved the compliance of Section 42(2) of the Act. Therefore, the argument advanced by the learned counsel for the appellants that non compliance of Section 42(2) of the Act is fatal to the case of the prosecution does not merit acceptance.
III. Non examination of Drivers and non seizure of vehicle:
23.Learned counsel appearing for the appellants would submit that the vehicle/car was not seized and the drivers of the vehicle namely, Mariappan and Satyakeerthy were not arrested and not examined, which is fatal to the case of the prosecution.
24.Resisting the same, Mr.N.P.Kumar, the learned Special Public Prosecutor for NCB Cases, would submit that after drivers of the vehicle were summoned, Section 67 statements of the drivers have been recorded. They have not connected with the commission of the offence and hence, they were left free. Furthermore, seizure of vehicle is not necessary for the case. Hence, the non seizure of vehicle is not fatal to the case of the prosecution. To substantiate the same, he relied upon the following judgments.
(i) 2003 (12) SCC 199 (Praveen Kumar v. State of Karnataka) in para-21, it reads as follows:
"21. .. .. Normally in cases where the evidence led by the prosecution as to a fact depends solely on the Police witnesses, the courts seek corroboration as a matter of caution and not as a matter of rule. Thus, it is only a rule of prudence which makes the court to seek corroboration from an independent source, in such cases while assessing the evidence of Police. But in cases where the court is satisfied that the evidence of the Police can be independently relied upon then in such cases there is no prohibition in law that the same cannot be accepted without independent corroboration. .. .."
(ii) 1996 (8) SCC 228 (Pattu lal v. State of Punjab) in para-6, it reads as follows:
"6. .. .. It will be appropriate to indicate here that corroboration is a rule of prudence. Evidentially value of a deposition which is otherwise admissible is no just wiped out in the absence of corroboration. Even in the absence of corroboration, a deposition for its quality may be safely accepted to be correct. It will be unfortunate if on account of over emphasis for corroboration, a crime goes unpunished by not giving due weight to uncorroborated evidence when such evidence is otherwise reliable. We, therefore, find no reason to interfere with conviction and sentence passed against the appellant and the appeal is accordingly dismissed. The appellant has been released on bail during the pendency of this appeal. He should be arrested forthwith to serve out the sentence."
(iii) 2002 (8) SCC 7 (Narayanaswamy Ravishankar v. Assistant Director, Directorate of Revenue Intelligence) and submitted that non-examination of independent witness is not fatal to the case of the prosecution.
(iv) 2009 (12) SCC 205 (State of Punjab v. Nirmal Singh) in para-13, it reads as follows:
"13. .. .. In the instant case, nothing of the nature could be pointed out. Further, P.Ws.1 and 2 categorically stated that no other person was willing to depose as witness. Therefore, the High Court was clearly in error in holding that the prosecution version became vulnerable for non-examination of persons who were not official witnesses."
25.Now it is appropriate to consider the evidence of P.W.7 and P.W.10, in which, they have stated that as soon as seizure has been made, summons has been issued to all the occupants including two Drivers. On their enquiry, they came to know that the contraband has been transported by A1 to A4 and after confirmation of the same, Drivers were left free. It is true, P.W.8 Gopi has not identified the accused before the Court while they are facing trial. Because of the faded memory and lapse of time and the occurrence had taken place in the year 2004, P.W.8 was unable to identify the accused, since he was examined in the year 2008, which is after four years. It is also pertinent to note that even though respondent had taken effective steps to secure the Drivers Mariappan and Satyakeerthy, to examine and to identify the accused, they were unable to secure the above said witnesses and to that effect, they filed a memo.
26. As per the decision of the Apex Court reported in 2010 (3) SCC 746 (Ajmer Singh v. State of Haryana), testimony of official witnesses, even in absence of its corroboration by independent evidence, can form basis of conviction if Court is satisfied, on careful and cautious appreciation of evidence, that it is otherwise believable. In the instant case, the respondent had taken effective steps to procure the Drivers, but they have not succeeded to secure them. The Special Court has also considered this aspect in para-33 of its judgment. In such circumstances, the argument advanced by the learned counsel for the appellants that non examination of the Drivers and independent witnesses is fatal to the case of the prosecution does not merit acceptance.
IV. Section 67 of NDPS Act is admissible in evidence:
27.Learned senior counsel has vehemently contended that Section 67 statement alleged to have been given by A1 to A4 are inadmissible in evidence and their statements were recorded after their arrest and even it was shown that after recording of Section 67 statement only the accused were arrested, but arrest is only a drama. To substantiate the same, he relied upon the decisions and submitted that it is unsafe to convict the accused only on the basis of Section 67 statement. It is further contended that English translation copy of Section 67 document has been marked without obtaining consent and without following the procedure. So the documents under Exs.P76 to P80 are inadmissible in evidence.
28.Now this Court has to decide whether Exs.P76 to P80 (i.e.) free English translation of Section 67 statement of A1 to A4 under Exs.P2, P6, P10 and P74 are admissible in evidence. It is true, those documents were marked by way of memo based on the alleged consent given by the counsel for the accused. The consent is not applicable for the appellants only for the reasons that each accused has been represented by different counsel and as far as A1 consent to mark the said exhibit was signed by A3's counsel, who has no authority to do so when counsel of A1 is available. Hence, Ex.P76-Free English translation of Section 67 statement of A1 (i.e.) Exs.P2 & P6, cannot be taken into evidence against him and therefore, the conviction recorded based on the above Exhibit falls short of law. For the same, he relied upon the decision reported in 2003 (1) MWN Crime page 97 (Shanmughavadivel @ Kannan v. State by Inspector of Police, Colachel Police Station, Kanyakumari District), in which, it was held that non examination of scientific expert, who conducted super imposition test and issued report and if any document is to be marked as evidence under Section 294 Cr.P.C., then the accused must be called upon to admit or deny the genuineness of the said document. But the above citation is not applicable to the facts of the present case. Because Section 67 statement has been written by the accused in their own handwritings in Hindi and the same has been marked as Exs.P2, P6, P10 and P74. Exs.P76 to P80 are only English translation. Those documents (i.e.) Exs.P2, P6, P10 and P74 were marked through the persons who obtained Section 67 statements from the accused (i.e.) P.W.6, P.W.7 and P.W.10, so, I am of the view, the above decision is not applicable to the facts of the present case. Since the original Hindi statements have been marked, to felicitate the Court to peruse the documents, free English translation copies have been marked as Exs.P76 to P80. Hence, the argument advanced by the learned counsel for the appellants that the documents Exs.P76 to P80 are not admissible in evidence does not merit acceptance.
29.While perusing page 121 in Volume II of the pleadings set, it is stated as follows:
" The complainant submits that the English translation of the voluntary statements of Badrilal Sharma, Toffan singh and Babulal Jain were omitted to be submitted to this Hon'ble Court. The English translation of the statements of the above accused and the letter of DIG, Narcotic, Indore and house search Mahazar were submitted to this Hon'ble Court on 31.3.2009."
After the counsel made an endorsement that he has no objection, it has been marked. But it is not the case of the learned senior counsel Mr.N.R.Elango that free English translation copy is contra to the original Hindi statement under Section 67, which was given by A1. In such circumstances, I am of the view, Exs.P76 to P80 are admissible in evidence.
30.Now this Court has to decide that whether Section 67 statements given by the accused are reliable?
While considering the evidence of P.W.1/Shivakumar, A1 gave his voluntary statement on his own volition in Hindi, in his own handwriting and the same was marked as Ex.P2-Section 67 statement of A1. On 25.10.2004, P.W.1 conducted a search in the office of A1 in the presence of independent witnesses and recovered certain documents like telephone bill and railway tickets and prepared mahazar Ex.P3. The railway ticket was marked as Ex.P4 and statement of A/C.Tata Indicom bill was marked as Ex.P5 containing 7 pages. After returning to Office, P.W.1 obtained statement of A1 in Hindi (i.e.) Ex.P6 and then he arrested A1 and the arrest memo was marked as Ex.P7. Thereafter, P.W.1 submitted Ex.P8 report under Section 57 of NDPS Act to his Superior. Ex.P7-arrest memo shows that A1 was arrested on 25.10.2004, at 17.45 hours. But Ex.P2 and Ex.P6 were obtained prior to his arrest. It is also pertinent to note that A1 was produced before the Magistrate and A1 never made any complaint that he was subjected to threat or undue influence. In such circumstances, I am of the view, Exs.P2 and P6 corresponding to the English translation copies Exs.P76 and P77 are reliable.
31.Likewise, A2 gave his voluntary statement Ex.P46 under Section 67 of NDPS Act before P.W.3. P.W.3 conducted a search in the house of A2, who is residing at Door No.1, Nakkeeran Street, Vadakku Ram Nagar, Madipakkam, Chennai, along with Officers, independent witnesses & also A2 and a relative of A2 viz., one Sangeetha and seized Ex.P48-passport, Ex.P49-ID card under seizure mahazar Ex.P47. Based on the statement and documents, A2 was arrested on 25.10.2004, at 17.30 hours, after serving arrest memo Ex.P50 to him. Then, P.W.3 submitted Ex.P51-Section 57 report to his higher official P.W.6. It shows that after recording Section 67 statement, P.W.3 made house search in the residence of A2 and thereafter, A2 was arrested. So the arrest is made after obtaining Section 67 statement of A2.
32.On the basis of Ex.P9-summons, P.W.2/Murugan enquired A3 and A3 gave his voluntary statement Ex.P10 under Section 67 of NDPS Act and he was arrested on 25.10.2004, at 10.00 a.m. and the arrest memo was marked as Ex.P11. Then, P.W.2 submitted Ex.P12-Section 57 of NDPS Act report to his higher official P.W.6.
33.P.W.10/Sendhil Murugan enquired A4 and A4 gave his voluntary statement Ex.P74 under Section 67 of NDPS Act and he was arrested on 25.10.2004, at 10.00 a.m. and the arrest memo was marked as Ex.P75. Then, P.W.10 submitted Ex.P71-Section 57 of NDPS Act report to his higher official P.W.6. It shows that appellants gave their Section 67 statements much before their arrest.
34.It is pertinent to note that in the remand report Ex.P55, it was stated that all the accused were produced before the learned IX Metropolitan Magistrate, Saidapet, on 25.10.2004, at 20.00 hours. At the time of remand, the learned Magistrate has made the following endorsement:
"Accused produced at residence at 20.00 hours. No complaint of ill-treatment, grounds of arrest informed. Remanded till 8.11.2004. Accused should be produced before the Hon'ble NDPS Court, Chennai, on 8.11.2004, at 10.30 a.m."
Admittedly, at the time of remand, the appellants never whispered that they were ill-treated and signatures were obtained in blank papers and under threaten and coercion, statements were obtained from them. In such circumstances, I am of the view, appellants/accused gave Section 67 statements voluntarily.
35.On behalf of A1, his son was examined as D.W.1 and the Doctor was examined as D.W.2, who gave treatment to A1 for paralysis and his medical records and medical slips for treatment from January 2008 to 25.09.2008 were marked as Ex.D1. But those documents show that after A1's arrest, while he was in jail, he was taking treatment. D.W.1 in his cross-examination, he fairly conceded that in June 2004, during summer vacation, his father had taken him to Pune and left him in his relative's house at Pune, which shows that A1 is healthy. Furthermore, when seizure was made, A1 and A2 handed over the bag, which contains contraband. So the oral evidence of D.W.1 and D.W.2 and Ex.D1 are no way giving helping hand to A1. Admittedly, when the appellants were produced before the learned Magistrate, they never made any complaint at the earliest point of time that they met ill-treatment and harassment by NCB officers. Retracting Section 67 statement during questioning under Section 313 Cr.P.C. is only an after thought to escape from the clutches of law. In such circumstances, I am of the view, Section 67 statements given by the accused are voluntary one.
36.Now this Court has to consider as to whether Section 67 statement itself is a basis for convicting the appellants/accused. But here, besides Section 67 statement, other evidence are also available. As per Exs.P37 & P43 and subscriber & call details, it would reveal that the absconding accused is having constant touch with A1 and A2. P.W.6, P.W.7 and P.W.10 are the officers, who seized contraband from the accused. Even though the independent witness P.W.8 did not identify the accused, he corroborated the evidence of P.W.6, P.W.7 and P.W.10 stating that the contraband has been seized from the accused and the samples have been taken for conducting test and he put his signature in the seizure mahazar. The evidence of P.W.8/independent witness would clearly prove that the accused A1 to A4 were intercepted on their way to Chennai, near Madhavaram and the contraband has been seized from them. The contraband seized is heroin and the same was proved by way of examining P.W.4 Saraswathi Chakravarthy, a chemical examiner.
37.Now this Court has to consider the decisions relied upon by the learned senior counsel for the appellants/A1, A3 and A4.
(i) 2008 (16) SCC 417 (Noor aga v. State of Punjab and another) and submitted that confession obtained by coercion will hit by Section 25 of Evidence Act and it affects Article 21 of the constitution. If the confession is given voluntarily, the burden of proving such a confession was made voluntarily would thus be on the prosecution.
(ii) 2009 (12) SCC 161 (Union of India v. Bal Mukund and others), in which, it was held that convicting all the accused based on their own statements under Section 67, even though no independent witnesses examined. In para-27 of the above Judgment, it was held that NDPS Act provides for a stringent punishment. We, for the purpose of this case, shall proceed on the assumption, the prosecution need not examine any independent witness although requirements therefor cannot be minimised. In (A.K. Mehaboob v. Narcotics Control Bureau) in 2002 SCC Crime 1035, it was held that a distinction between a case where the accused himself had stated that he had made the statement on the belief that he would be rewarded and a case where such purported confession had been obtained upon interrogation by high ranking police officials. Now it is appropriate to incorporate para-34 of the Judgment in 2009 (12) SCC 161 (Union of India v. Bal Mukund and others), which reads as follows:
"34. In Noor Aga's case, this Court held that whether the confession was made under duress or coercion and/or voluntary in nature should be considered having regard to the facts and circumstances of each case. It was opined:
"74.Section 25 of the Evidence Act was enacted in the words of Mehmood J in Queen Empress v. Babulal to put a stop to the extortion of confession, by taking away from the police officers the advantage of proving such extorted confession during the trial of accused persons. It was, therefore, enacted to subserve a high purpose."
84.Even otherwise Section 138-B of the 1962 Act must be read as a provision containing certain important features, namely:
(a) There should be in the first instance statement made and signed by a person before a competent custom official.
(b) It must have been made during the course of enquiry and proceedings under the Customs Act.
Only when these things are established, a statement made by an accused would become relevant in a prosecution under the Act. Only then, it can be used for the purpose of proving the truth of the facts contained therein. It deals with another category of case which provides for a further clarification. Clause (a) of sub-section (1) of Section 138-B deals with one type of persons and clause (b) deals with another. The Legislature might have in mind its experience that sometimes witnesses do not support the prosecution case, as for example panch witnesses, and only in such an event an additional opportunity is afforded to the prosecution to criticize the said witness and to invite a finding from the court not to rely on the assurance of the court on the basis of the statement recorded by the Customs Department and for that purpose it is envisaged that a person may be such whose statement was recorded, but while he was examined before the court, it arrived at an opinion that is statement should be admitted in evidence in the interest of justice which was evidently to make that situation and to confirm the witness who is the author of such statement, but does not support the prosecution although he made a statement in terms of Section 108 of the Customs Act. We are not concerned with such category of witnesses. The Confessional statement of an accused, therefore, cannot be made use of in any manner under Section 138-B of the Customs Act. Even otherwise such an evidence is considered to be of weak nature."
It was also held that sanctity of the recovery should be ensured. "
(iii) 2010 (1) MWN (crime) 287 (Mohammed Jameen Mohamed Munawar and others v. Intelligence Officer, NCB South Zone, Chennai), in para-25 of the Judgment, the Hon'ble brother Justice of our High Court considered the cantina of Judgment of Apex Court. In para-26, it reads as follows:
"26. From the decisions of the Honourable Supreme Court cited supra, this Court comes to the following conclusions:
(i)If the statement of the accused is recorded under Section 67 of the NDPS Act and if it is incriminating against himself amounting to confessional statement, if held to be voluntary in nature, conviction can be made solely based upon such statement even without any corroboration.
(ii) Even if such confessional statement is retracted, if it is proved by the prosecution beyond reasonable doubt that the confession was voluntary in nature, conviction can be based solely upon such statement. The burden is on the accused to prove the statement was obtained by threat, duress or promise. If reasonable doubt is created by the accused then the burden is shifted to the prosecution to prove beyond doubt that the statement was given voluntarily.
(iii)If the confessional statement of the accused under Section 67 of the NDPS Act is retracted, within a reasonable time at the earliest opportunity, then to place reliance on such confessional statement, the rule of prudence requires the Court to seek for corroboration on general particulars."
38.Resisting the same, learned Special Public Prosecutor Mr.N.P.Kumar, relied upon the following decisions:
(i) 2008 (1) Crimes 154 SC (Kanhaiyalal v. Union of India), in which, it reads as follows:
"As long as the statement was made by the accused at a time when he was not under arrest, the bar under Sections 24 to 27 of the Evidence Act would not operate nor would the provisions of Article 20(3) of the Constitution be attracted. It is only after a person is placed in the position of an accused that the bar imposed under the aforesaid provision will come into play.
Officers of the Department of Revenue Intelligence who have been vested with powers of an Officer-in-charge of a police station under Section 53 of Act are not 'police officers' within the meaning of Section 25 of the Evidence Act. Therefore, a confessional statement recorded by such officer in the course of investigation of a person accused of an offence under the Act is admissible in evidence against him."
It was held that conviction can be made solely on the basis of confession under Section 67 without any further corroboration.
(ii) 2011 Crl.L.J. 3579 (Ram singh v. Central Bureau of Narcotics) in which, it was held that confession recorded by the Officer of Central Bureau of Narcotics is admissible in evidence. In para-14, it reads as follows:
"Since it has been held by this Court that an officer for the purposes of Section 67 of the NDPS Act read with Section 42 thereof, is not a police officer, the bar under Sections 24 and 27 of the Evidence Act cannot be attracted and the statement made by a person directed to appear before the officer concerned may be relied upon as a confessional statement against such person. Since a conviction can be maintained solely on the basis of a confession made under Section 67 of the NDPS Act, we see no reason to interfere with the conclusion of the High Court convicting the appellant."
(iii) (2005) 7 SCC 36 (State of Rajasthan v. Daulat Ram) in para-11, it reads as follows:
" Contention that once police accosted the respondent, who was suspected of possessing contraband opium, he must be deemed to be under arrest and therefore any confession made by him could not be used against him, held, unsustainable. Merely because respondent was questioned by police on suspicion, it could not be said that he was under arrest. "
(iv) (1996) 8 SCC 228 (Pattu lal v. State of Punjab) in para-6, it reads as follows:
"6. .. .. Even in the absence of corroboration, a deposition for its quality may be safely accepted to be correct. It will be unfortunate if on account of overemphasis for corroboration, a crime goes unpunished by not giving due weight to uncorroborated evidence when such evidence is otherwise reliable. We, therefore, find no reason to interfere with conviction and sentence passed against the appellant and the appeal is accordingly dismissed. "
(v) 2004 SCC Crime 447 (T.Thomson v. State of Kerala and another) in para-4, it held as follows:
"4. Though arguments have been addressed by Shri. U.R. Lalit, learned Senior Counsel who is appearing for the second accused regarding the voluntary nature of the statement, we are not persuaded to find anything which would affect the voluntariness of those statements. Learned Counsel argued that it was the duty of the prosecution to give evidence in support of the voluntary nature of the statement. The court, before which the statement was tendered has considered the evidence after cross-examination of the witnesses responsible for the same and reached the conclusion that the statements were made voluntarily. We are not told of any special reason to take a different view. "
(vi) In 2003 (7) Supreme 61 (M.Prabhulal v. The Assistant Director, Directorate of Revenue Intelligence), it was held that the confession is solely based on Section 67 statement of the NDPS Act by the accused.
39. As per the dictum of the Apex Court, Officers of Narcotic Bureau is not police officials. So the statement recorded by P.W.1 to P.W.3 and P.W.10 before arrest is not hit by Section 24 to Section 27 of Indian Evidence Act. There is no retraction by the accused once they were produced before the learned Judicial Magistrate and there was no complaint of ill-treatment and allegation against the Officers. Furthermore, Section 67 statement has been corroborated by the documentary evidence viz., railway tickets, telephone call statements, passport, I.D. Card and the contraband which was seized from A1 and A2 by P.W.6, P.W.7 and P.W.10. It shows that after contraband has been seized, summons has been issued to the accused for their appearance. In pursuance of their appearance, the accused were enquired and at that time, they ultimately gave their own statements in Hindi under Exs.P2, P6 by A1; Ex.P46 by A2; Ex.P10 by A3; Ex.P74 by A4. The corresponding English translation copies are marked as Exs.P76 to P80 and the arrest memo given to the accused 1 to 4 are marked as Exs.P7, P50, P11 and P75 respectively. The above aspect would show that before accused were arrested, they gave voluntary confession statements under Section 67 of NDPS Act. Hence, it is not hit by Section 25 of Indian Evidence Act.
40.As per the dictum of the Apex Court reported in 2008 (1) Crimes 154 SC (Kanhaiyalal v. Union of India), conviction can be made solely on the basis of confession under Section 67 without any further corroboration. In the instant case, there is a corroboration, which has been corroborated by the documents (i.e.) railway tickets, telephone call statement and Passport. Hence, I am of the view, prosecution has proved that Section 67 statements are admissible in evidence and they are reliable and not hit by Section 25 of the Evidence Act, even though conviction has been based on the confession without any corroboration. But here, the evidence of P.W.6, P.W.7 and P.W.10 are corroborated by the independent witness P.W.8/Gopi, even though he was not in a position to identify the accused. He deposed before the Court that at the time of seizure, six persons were travelling in the car and the samples have been taken and it was sealed and P.W.8 also signed in the Mahazar and identified his signature before the Court. So the possession of contraband from A1 and A2 has been proved by the prosecution beyond reasonable doubt. Except the four appellants/four accused herein, other accused are now facing trial.
41.Learned senior counsel Mr.B.Kumar, who is appearing for A3 and A4, submitted that in the information report, names of A3 and A4 have not been mentioned and there is no evidence to show that how the accused are implicated. As per the evidence of P.W.6, P.W.7 and P.W.10, at the time of intercepting the vehicle, A3 and A4 also accompanying with A1 and A2 and when they made an enquiry, A1 and A2 handed over the contraband and after issuance of summons for their appearance before the NCB office, the accused appeared and gave their voluntary statements. In such circumstances, I am of the, the argument advanced by the learned senior counsel for A3 and A4 that A3 and A4 have been falsely implicated in this case, does not merit acceptance. Furthermore, A3 and A4 are having contact with A1 and A2 and that was evidenced by their call in and call out report received from the Airtel and Tata Indicom. That factum has been properly considered by the learned Special Judge.
V.Whether A2 is entitled to invoke Section 30 of NDPS Act:
42.Mr.R.C.Paul Kanagaraj, learned counsel appearing for A2 submitted that A2 is only punishable under Section 30 of NDPS Act, since he had not taken active part in commission of offence. As per Ex.P72/Information report, A2 has assigned the work to transport the contraband to Srilanka, so his part is not yet begins and he is only doing preparation and hence, he is only punishable under Section 30 of NDPS Act. At this juncture, it is appropriate to incorporate Section 30 of NDPS Act, which reads as follows:
Section 30:Preparation:
If any person makes preparation to do or omits to do anything which constitutes an offence punishable under any of the provisions of sections 19, 24 and 27-A and for offences involving commercial quantity of any narcotic drug or psychotropic substance and from the circumstances of the case it may be reasonably inferred that he was determined to carry out his intention to commit the offence but had been prevented by circumstances independent of his will, he shall be punishable with rigorous imprisonment for a term which shall not be less than one-half of the minimum term (if any), but which may extend to one-half of the maximum term, of imprisonment with which he would have been punishable in the event of his having committed such offence, and also with fine which shall not be less than one-half of the minimum amount (if any), of fine with which he would have been punishable, but which may extend to one-half of the maximum amount of fine with which he would have ordinarily (that is to say in the absence of special reasons) been punishable, in the event aforesaid:
Provided that the court may, for reasons to be recorded in the Judgment, impose a higher fine."
But as per the evidence of P.W.6, P.W.7 and P.W.10, A1 and A2 handed over the bag, which contains 5.250 kgs. of heroin. So it would clearly prove that A1 and A2 were in possession of contraband. As per the dictum of the Apex Court laid down in 2004 SCC (cri) 58 (Megh singh v. State of Punjab), once possession of contraband has been proved, it is a conscious possession as per Sections 35 and 54 of NDPS Act. Once possession is established, the person who claims that it was not a conscious possession has to establish it. In para-13 and 14, it is held as follows:
"13.Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. This position was highlighted in Madan Lal and Anr. v. State of Himachal Pradesh (2003 (6) SCALE 483).
14.In the factual scenario of the present case not only possession but conscious possession has been established. It has not been shown by the accused-appellant that the possession was not conscious in the logical background of Sections 35 and 54 of the Act."
But as per the evidence of P.W.6, P.W.7 and P.W.10, the accused A1 & A2 handed over the contraband and hence, they are in conscious possession. In such circumstances, A2 is not entitled to invoke Section 30 of NDPS Act and not entitled any leniency for reducing the sentence imposed on him. Therefore, conviction of the appellants/accused for the offence under Sections 8(c) r/w 21(c) and 29 of NDPS Act, does not suffer any illegality or irregularity. Therefore, I do not find any reason warranting interference with the conviction and sentence passed by the learned Special Judge and the judgment of conviction and sentence is hereby confirmed.
43.In the result:
(a) The Criminal Appeals are dismissed and the conviction and sentence imposed on the appellants/A1 to A4, by the Special Court, are confirmed.
(b) Consequently, connected Miscellaneous Petitions are closed.
kj To
1.The Intelligence Officer Narcotics Control Bureau South Zonal Unit Chennai-90.
2.The Additional Special Court (NDPS Act), Chennai.
3.The Special Public Prosecutor (NDPS), High Court, Madras.
4.The Record Keeper Criminal Section High Court, Madras