Kerala High Court
Cini P. Antony vs State Of Kerala on 29 May, 2019
Equivalent citations: AIRONLINE 2019 KER 82, 2019 CRI LJ 4738
Author: P.Ubaid
Bench: P.Ubaid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.UBAID
WEDNESDAY, THE 29TH DAY OF MAY 2019 / 8TH JYAISHTA, 1941
CRL.A.No.806 of 2016
AGAINST THE JUDGMENT IN SC 935/2015 of SPECIAL COURT FOR NDPS
ACT CASES (ADDL.SESSIONS COURT-II), THIRUVANANTHAPURAM
DATED 02-03-2016
--------------------
APPELLANT/ACCUSED :-
CINI P. ANTONY, AGED 40, D/O.THE LATE P.ANTONY,
PATHRAKADAVIL VEEDU, KUNNUMMELKADU,
KOTTANELLOR, THRISSUR
DETAINED IN WOMEN'S PRISON AT ATTAKULANGARA,
THIRUVANANTHAPURAM.
BY ADVS.SRI.S.V.RAJAN
SMT.LAISA B.JOSE
SRI.CIBI K.CHERIAN
SRI.C.P.JAGADESH
SRI.R.SANTHOSH (VARKALA)
SRI.R.SUDHISH
RESPONDENT/STATE & COMPLAINANT :-
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM,
KOCHI - 682 031.
* 2 SAMSON K. SAMUEL (DELETED)
INTELLIGENCE OFFICER,
NORCOTICS CONTROL BUREAU, SUB-ZONE,
GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS,
A1 BLOCK, 2ND FLOOR, KAKKANADU, COCHIN - 682 037.
[THE PERSONAL NAME OF THE 2ND RESPONDENT SHOWN IN
THE CAUSE TITLE AS "SAMSON K.SAMUEL" IS DELETED AS
PER ORDER DATED 02/07/2018 IN CRL.MA.2208/2018].
BY SRI.M V S NAMBOOTHIRY, SC FOR NCB
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 4.2.2019,
THE COURT ON 29.5.2019 DELIVERED THE FOLLOWING:
CRL.A.No.806/2016
-: 2 :-
P.UBAID, J.
----------------------------
Crl.A. No.806 of 2016
-------------------------------------------
Dated this the 29th day of May 2019
JUDGMENT
The appellant herein challenges the conviction and sentence against her under Sections 21(c) and 23(c) of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) in S.C. No.935/2015 of the Special Court for the trial of NDPS Act cases (Additional Sessions Court-II), Thiruvananthapuram. She is the sole accused, who faced trial in the said case. Though the final report alleges involvement of two other persons, they could not be apprehended, and so, final report was filed only against the appellant. She faced trial on the allegation that at about 3 a.m. on 6.2.2015 at the Thiruvananthapuram International Airport, she was found possessing 1060 gms of heroin, carried in a bag, intended for export to Kuwait. The accused was arrested on the spot, and the contraband article was seized as per a mahazar at the CIP lounge within the CRL.A.No.806/2016 -: 3 :- Airport. The offence was detected by an Intelligence Officer of the Narcotic Control Bureau (NCB) on the basis of secret reliable information received by him at about 3 p.m. on 5.2.2015. He recorded the said information, and sent a report to his superior officer under Section 42 of the NDPS Act. After sending such report, he reached the Airport with the other officials and waited for the accused. At about 3 a.m. on 6.2.2015, the Intelligence Officer and the others saw the accused carrying a bag and talking to the CISF Security personnel at the entrance of the Airport departure terminal. Finding that the lady, who was seen talking to the CISF personnel had the identification features mentioned in the report received under Section 42 of the NDPS Act, the Intelligence Officer questioned the accused, and asked whether she had any narcotic drug or psychotropic substance in her possession. Without any resistance or compulsion, she answered in the affirmative and handed over the bag to the Intelligence Officer. She also admitted that the CRL.A.No.806/2016 -: 4 :- said bag contained heroin. For further procedure and detection, the lady along with the bag was taken to the CIP lounge at the Airport, where, the bag was opened by the Intelligence Officer in the presence of witnesses, and he found two packets of heroin; each having a weight of 530 gms. After the procedural formalities prescribed under the law, the contraband article was seized as per a mahazar. The accused and the witnesses were interrogated after giving notice under Section 67 of the NDPS Act, and the accused was arrested at the CIP lounge by the Intelligence Officer. Investigation was conducted by another Intelligence Officer of the NCB. Though the prosecution would allege criminal conspiracy and also involvement of two other persons, including a citizen of Kuwait, the NCB filed complaint only against the lady, who was found possessing heroin. The prosecution would allege that the accused brought heroin at the Airport with the object of it being exported to Kuwait.
CRL.A.No.806/2016-: 5 :-
2. The accused appeared before the learned trial Judge and pleaded not guilty to the charge framed against her. The prosecution examined six witnesses and proved Exts.P1 to P35 documents. The MO1 to MO13 properties were also identified during trial. When examined under Section 313 Cr.P.C., the accused denied the incriminating circumstances, and projected a defence that a false case was foisted against her, when the NCB officials could not detect or arrest the persons, who are actually involved in the attempted export of heroin. In defence, she examined herself as DW1 with the permission of the court, and Exts.D1 to D6 were also marked on her side. On an appreciation of the evidence, the trial court found the accused guilty under Sections 21(c) read with Section 8 of the NDPS Act for the possession of commercial quantity of heroin, and also under Section 23(c) read with Section 28 of the NDPS Act for attempted export of commercial quantity of heroin. On conviction, she was sentenced to undergo rigorous imprisonment for 15 years each and to pay a fine of CRL.A.No.806/2016 -: 6 :- Rs.1,50,000/- each under the two Sections. Aggrieved by the judgment of conviction dated 2.3.2016, the accused has come up in appeal.
3. When this appeal came up for hearing, the learned counsel for the appellant submitted that the whole prosecution case is suspicious, that there is material inconsistency on material aspects, including the actual place of detection, and also the actual colour of the contraband substance seized, and that the benefit of the doubtful circumstances will have to be given to the accused.
4. Pending the appeal, the appellant filed two applications as Crl.M.A.Nos.6551/2016 and 6064/2016. Those applications were also heard along with the appeal. One is to cause production of the register relating to the issue of pass for entering the departure terminal and the CIP lounge of the International Airport, Thiruvananthapuram, and the other is to cause production of the CCTV camera footages. The accused wants production of the materials for disproving the prosecution that she had CRL.A.No.806/2016 -: 7 :- come at the Airport for travel on 6.2.2015 because, the air ticket produced by the prosecution in this case is of 5.2.2015. Of course, on an appreciation of the evidence, I find that the conviction in this case under Section 23(c) of the NDPS Act is not sustainable because there is no satisfactory evidence to prove attempted export. It doesn't matter whether the accused had an air ticket for travel to Kuwait, or whether she actually came there for going to Kuwait. Her presence at the Airport premises and the seizure of contraband article from her possession are otherwise well proved by the other material witnesses. When the conviction under Section 23(c) of the NDPS Act is not sustainable, it need not be probed into whether the accused came at the Airport for onward journey to Kuwait. It is quite probable that she came there with a bag containing heroin with the object of it being handed over to somebody else. Production of CCTV camera footages of 2015 in the year 2019 will not serve any purpose. The petitioner wants to disprove the prosecution case that the CRL.A.No.806/2016 -: 8 :- detection was made at the CIP lounge. On this aspect also, there is clear and convincing evidence. It is pertinent to note that the accused does not have any definite case as to where exactly is the place of detection. She would contend that she was caught by the NCB officials at the entry to the terminal, and the place of detection was shifted to the CIP lounge by the NCB officials. As regards the prosecution evidence that a bag containing heroin was handed over by the accused to the NCB officials at the entry to the terminal, the accused does not have any dispute, and she would practically admit that she was in fact caught at the entry to the terminal. So, the two applications are rejected.
5. Of the six witnesses examined by the prosecution, PW1 is the Intelligence Officer, who detected the offence, and PW3 is the independent witness, who witnessed the whole process of detection. PW5 is only the driver, who brought the accused at the Airport in his taxi car. PW2 is the superior officer of PW1, examined to prove the CRL.A.No.806/2016 -: 9 :- reports under Sections 42 and 57 of the NDPS Act, and PW6 is the Intelligence Officer, who conducted investigation. PW4 is the scientist examined to prove the Ext.P17 report of analysis.
6. PW1 and PW3 have given definite and consistent evidence proving the detection. Ext.P1 is the report recorded and sent by PW1 to PW2 under Section 42 of the NDPS Act, and Ext.P2 is the notice given to the accused by PW1, intimating her about her right to be searched in the presence of a Gazetted Officer or a Magistrate. Ext.P13 is the report sent by PW1 to PW2 under Section 57 of the NDPS Act. An examination of the evidence given by PW6 shows that there was no flaw or irregularity or illegality in the investigation conducted by him. In view of the latest decision of the Hon'ble Supreme Court in Mohan Lal v. The State of Punjab [AIR 2018 SC 3853], the learned counsel submitted that investigation in this case is vitiated. PW6 is not the officer, who detected the offence. The ground of objection raised by the defence is that, both PW1 and PW6 are of the CRL.A.No.806/2016 -: 10 :- same grade. That the Investigating Officer is of the same grade as that of the Detecting Officer cannot be a ground to apply the decision of the Hon'ble Supreme Court in Mohan Lal's case. I find that the case was properly investigated by PW6, and I do not find any flaw or irregularity or illegality.
7. Ext.P5 is the detection mahazar prepared on the spot by PW1 and signed by the witnesses, including PW3. This mahazar contains the details of the detection process, and the whole process is described in the Ext.P13 report sent under Section 57 of the NDPS Act also. The Ext.P1 report contains the clear information received by PW1, and this report is proved by PW2. Of course, it has come out in evidence that PW2 was away from Station, when PW1 received the information, and that, besides sending the report, PW2 was intimated over telephone also. This is the evidence of PW1 and PW2. Ext.P1 is fully in conformity with Section 42 of the NDPS Act, and Ext.P13 report also contains all the required details as meant under Section 57 of the NDPS Act. I find CRL.A.No.806/2016 -: 11 :- true compliance of Sections 42 and 57 of the NDPS Act in this case. PW2 has proved both the reports. I find no reason to reject his evidence.
8. PW5 is only the taxi driver, who brought the accused at the Airport. He had not witnessed the process of detection. He has stated that he had brought the accused at the International Airport, Thiruvananthapuram in the night on 5.2.2015. His evidence also shows that he had seen the NCB officials taking the accused into custody along with her bag. As there was some confusion regarding the date of travel, he was asked by the accused to wait till she obtained boarding pass. While he was waiting outside, he heard some noise. At the entry to the departure terminal, the accused was taken into custody by the NCB officials, and she was taken inside. He does not know what transpired later. This evidence given by PW5 stands not discredited.
9. The material evidence is that of PW1 and PW3. It cannot be said that PW3 is a chance witness or a hired witness. He was a staff of the baggage CRL.A.No.806/2016 -: 12 :- wrapping service at the Airport, and he was required by the NCB officials to witness the detection. This witness has given the full details of the detection, fully supporting the case of PW1, and his evidence is fully consistent with the contents of the Ext.P5 detection mahazar.
10. PW3 has given evidence that at about 3 a.m. on 6.2.2015, the accused was seen bargaining with the CISF security personnel at the entry to the departure terminal of the Airport, and she was taken into custody by PW1 and his colleagues. When questioned by PW1, the accused answered that she had some quantity of heroin in her bag, and the bag was handed over to PW1 by the accused. Within no time, the accused was taken to the CIP lounge by PW1 and others, where, PW1 opened and examined the bag, and found two packets of heroin. From the two packets, PW1 collected two samples each, and the samples were well packed and sealed. The remaining quantity of heroin was also packed and sealed by PW1. Thereafter, PW3 was questioned by the NCB officials CRL.A.No.806/2016 -: 13 :- after giving notice under Section 67 of the NDPS Act. He does not know, when exactly the accused was arrested by PW1. Though he does not know anything about the arrest, he has proved the seizure of 1060 gms of heroin from the possession of the accused at the CIP lounge of the Airport. This witness has no reason to give any false evidence against the accused, or to unnecessarily help the NCB officials. He is not a chance witness, and according to him, he was required by PW1 and others to witness the search and seizure. PW3 has also given evidence regarding the compliance of Section 50 of the NDPS Act. His evidence is that when PW1 asked the accused whether she wanted the presence of any gazetted officer or Magistrate for body search, she waived her right and consented to be searched by the officer himself. Accordingly, in the presence of PW1 and others, and as instructed by PW1, the body of the accused was searched by a lady staff by name, Rema. The evidence of PW1 is that the said Rema is a staff of the Emigration Department of the Airport. This CRL.A.No.806/2016 -: 14 :- particular evidence of PW3 as regards the compliance of Section 50 of the NDPS Act, that PW1 had informed the accused of her right under Section 50, and that the accused waived her right and consented to be searched by the officer himself, stands not in any manner challenged or discredited. It is pertinent to note that no question was asked by the defence to PW3 on this very material aspect.
11. The evidence of PW1 is also that at about 3 a.m. on 6.2.2015 at the Airport, near the entry to the departure terminal, he saw a lady bargaining with the CISF security staff about the air ticket and the travelling time, and he identified her as the lady, about whom, he had received information under Section 42 of the NDPS Act. He approached the accused and asked whether she had any narcotic drug or psychotropic substance. Without any resistance, the accused handed over the bag carried by her, and stated that it contained some quantity of heroin. Finding it not safe to seize the article then and there, the accused along with the bag was taken to CRL.A.No.806/2016 -: 15 :- the CIP lounge, where, he opened the bag in the presence of witnesses, and found two packets of heroin. Each packet had a weight of 530 gms. From both the packets, he took two samples of 5 gms each, and the sample packets and the remaining quantity of heroin were well packed and sealed. Thereafter, the accused was given notice under Section 67 of the NDPS Act, and the statement voluntarily given by her was recorded under Section 67 of the NDPS Act. PW1 proved Ext.P6 as the notice under Section 67, and Ext.P7 as the statement voluntarily given by the accused under Section 67 of the NDPS Act. The Ext.P7 statement also contains all the details of the detection process, including seizure of 1060 gms of heroin from the possession of the accused. It is well settled that the statement given by an accused under Section 67 of the NDPS Act to any officer other than a police officer is admissible in evidence, and it will bind the accused. If the statement contains any confession, the said confession also can be well proved under the law, and the confession will also CRL.A.No.806/2016 -: 16 :- bind the accused. Of course, even without the aid of the Ext.P7 statement, the process of detection stands very well proved by the evidence of PW1 and PW3. When the direct evidence given by these two witnesses is quite convincing and satisfactory to prove the detection, much need not be discussed or thought of about the Ext.P7 statement.
12. PW1 has also given evidence regarding the compliance of Section 50 of the NDPS Act. Of course, according to him, the accused was informed of her right under Section 50 of the NDPS Act after the bag was opened at the CIP lounge. He seized the contraband article and also collected the required samples. Thereafter, when he felt the necessity of body search, the accused was informed of her right under Section 50 of the NDPS Act, and she was given the Ext.P2 notice. This notice is proved by PW1. The notice contains the waiver of right made by the accused, and this is also proved by PW1. Of course, it is true that the Ext.P2 notice was given, or the accused was informed of her right under Section 50 of CRL.A.No.806/2016 -: 17 :- the NDPS Act after the heroin contained in the bag was seized. This will not vitiate the procedure under Section 50 of the NDPS Act. In court, PW1 and PW3 very well identified the contraband articles, including the MO12 bag carried by the accused. The clear evidence given by these two witnesses is that the MO12 bag was handed over to PW1 by the accused, and that it was not seized by PW1 on any search. Evidence well satisfies the court that just when PW1 asked the accused whether she had any quantity of heroin in her possession, she answered in the affirmative and immediately handed over the MO12 bag without any resistance or compulsion. To the seizure of the bag, and the seizure of the contraband articles therein, Section 50 of the NDPS Act would not apply. Any way, as part of the process, the accused was informed of her right under the law, and her body was searched in the presence of a lady officer, after the accused waived her right. It is true that the said lady is not examined as a witness. But, PW1 and PW3 are consistent that she was a staff CRL.A.No.806/2016 -: 18 :- of the Emigration Department. No contraband article was seized on body search. PW1 could seize only some currency, passport, air ticket, etc. on body search. These objects were also identified during trial. Ext.P4 is the air ticket seized by PW1. This is of the date 5.2.2015. Though, Section 50 of the NDPS Act is not strictly applicable in this case to the seizure of the contraband article contained in the bag handed over by the accused voluntarily, PW1 felt the necessity of body search, and accordingly, gave notice to the accused under Section 50 of the NDPS Act. He did not procure the presence of any gazetted officer or a Magistrate only because the accused waived her right. PW1 has affirmed that everything was explained to the accused in her own language. On this material aspect, there is no challenge. Thus, I find that PW1 had very well complied with the provisions under Section 50 of the NDPS Act also in the detection process.
13. Now, let me see whether there is any material discrepancy or inconsistency on material aspects, as CRL.A.No.806/2016 -: 19 :- the defence would contend. One material inconsistency raised by the accused is regarding the place of occurrence. The accused would contend that the place of occurrence was wrongly and dishonestly shifted to the CIP lounge by PW1. I do not find any substance in this argument because, the independent witness examined as PW3 is definite that the accused was first seen by PW1, and was also taken into custody by him at the entry to the departure terminal of the Airport, and she was taken immediately to the CIP lounge, where the bag carried by the accused was opened and examined by PW1. Thus, evidence well proves that the actual detection was at the CIP lounge, and I do not think that the place of occurrence was shifted by the prosecution. At the entry to the departure terminal, the accused was only seen by PW1, and the MO12 bag was also handed over by her. The actual seizure as part of the detection was made at the CIP lounge. I do not find any substance in the arguments raised by the defence. CRL.A.No.806/2016 -: 20 :-
14. Another inconsistency raised by the accused is regarding the compliance of Section 50 of the NDPS Act. On this aspect, PW1 has given convincing evidence, and the evidence given by PW3 stands not challenged also. I do not find any material inconsistency in the evidence of PW1 and PW3 as regards the compliance of Section 50 of the NDPS Act.
15. Yet another very material inconsistency raised by the accused is regarding the colour of the contraband article. What is seized in this case is heroin. Four samples taken by PW1 were produced in court. PW4 has proved the report of analysis, and his evidence is that on analysis at the laboratory, the samples were identified as heroin. Evidence well satisfies the court that the samples were taken from the total quantity of the substance seized from the possession of the accused, concealed in the MO12 bag. The report of analysis shows that the material received at the laboratory was a light brown material. Of course, in the occurrence report and also in the final report, the colour of the material CRL.A.No.806/2016 -: 21 :- is seen recorded as 'ivory' colour. The colour of the substance or the contraband article seized by PW1 is very well described in the Ext.P5 detection mahazar as 'light brown', and the substance received at the laboratory was also a 'light brown' substance. It was identified as heroin by PW4. The difference in colour is quite marginal. In one document, it is recorded as 'ivory' colour, whereas in the other documents like the detection mahazar and the report of analysis, it is recorded as 'light brown colour'. In between ivory colour and light brown colour, the difference could be quite marginal. Any way, it stands well proved that the material analysed at the laboratory was taken from the very same material taken by PW1 from the bag handed over by the accused. When such clear and satisfactory evidence is there, it is quite immaterial that there is some negligible difference as regards the colour of the material. I do not find any substance in the contention raised by the accused.
CRL.A.No.806/2016-: 22 :-
16. The learned counsel for the accused has placed some decisions of the Hon'ble Supreme Court. Those decisions are regarding the compliance of the provisions of Sections 42, 50 and 57 of the NDPS Act. The quantity involved is a huge quantity of 1060 gms, and the entire substance was identified as heroin. As regards the weight of the substance received at the laboratory also, something was argued by the defence. The evidence given by PW1 is that he had collected four samples of 5 gms each. The Ext.P17 report of analysis shows that the weight of the substance in one sample was 4.57 gms, and the weight of the other was 5.24 gms. The difference is quite marginal. This marginal difference will not change the identity of the article collected on the spot, and received at the laboratory.
17. As discussed in the foregoing paragraphs, I find that the prosecution has well proved the case under Section 21(c) of the NDPS Act, that the accused was found possessing 1060 gms of heroin at the International Airport, Thiruvananthapuram at about 3 CRL.A.No.806/2016 -: 23 :- a.m. on 6.2.2015. Now, let me see whether the conviction under Section 23(c) of the NDPS Act is sustainable. It is pertinent to note that PW1, who detected the offence has no case anywhere in his evidence that the quantity of heroin was brought at the Airport by the accused for being exported to Kuwait or to any other country. He has not stated anything about such export. Just because, a person was found possessing some article at the Airport, it cannot be immediately assumed that it was meant for export. The Ext.P4 air ticket shows that the date therein is 5.2.2015, and not 6.2.2015. Admittedly, the accused was found at the Airport at about 3 a.m. on 6.2.2015. Had it been a case of export or intended export, PW1 could have seen an air ticket of 6.2.2015 in the hands of the accused. One probability is that, the accused brought heroin at the Airport, with the object of it being handed over to somebody else. When there is nothing to show that the accused had an air ticket for travelling to Kuwait or some other country on 6.2.2015 (the day on CRL.A.No.806/2016 -: 24 :- which detection was made), it cannot be found that the quantity of heroin was intended to be exported. Of course, PW6 the Investigating Officer has stated that, on investigation he could gather that it was meant for export. What he stated is on the basis of what he heard or collected. It is not known, what is the definite material to prove such export or intended export. PW1, who detected the offence has no case of such export. Without any air ticket for air travel on 6.2.2015, the accused could not have in fact exported the quantity of heroin to any foreign country. In the absence of any evidence to prove attempted export, the accused cannot be found guilty under Section 23(c) of the NDPS Act.
18. Now, the question of sentence. The accused in this case is a lady. There is nothing to show that she had previous involvement in like offences, and the NCB has no case that she is a previous convict. Her age was 39 years at the time of detection. She must be now aged about 43 years. On a consideration of the various aspects, I find CRL.A.No.806/2016 -: 25 :- that the minimum sentence in this case would be the adequate sentence, and accordingly, the sentence can be modified and reduced.
In the result, this appeal is allowed in part. The appellant is found not guilty of the offence under Section 23(c) read with Section 28 of the NDPS Act, and she is acquitted of the said offence in appeal under Section 386(b)(i) Cr.P.C. Accordingly, the conviction and sentence against her under Section 23(c) read with Section 28 of the NDPS Act in S.C.No.935/2015 of the court below will stand set aside. But, the conviction under Section 21(c) of the NDPS Act in S.C.No.935/2015 is confirmed. However, the substantive sentence imposed by the trial court under Section 21(c) of the NDPS Act will stand modified and reduced to rigorous imprisonment for ten years, and the amount of fine will stand reduced to Rs.1,00,000/- (Rupees One lakh only). As a further modification, the default sentence also will stand reduced to rigorous imprisonment for six months.
CRL.A.No.806/2016-: 26 :-
Communicate a copy of this judgment to the Superintendent of the Jail, where the accused/ appellant has been undergoing sentence.
Sd/-
P.UBAID JUDGE //TRUE COPY// P.A. TO JUDGE Jvt/22.5.2019