Madras High Court
Mayil Vahanan vs Intelligence Officer, Narcotic ... on 12 April, 2006
Equivalent citations: 2007 CRI. L. J. (NOC) 7 (MAD.), 2007 (2) AJHAR (NOC) 507 (MAD.)
ORDER M. Jeyapaul, J.
1. The petition is filed seeking quashment of the criminal proceedings in C.C.No.102 of 2003 on the file of the learned Principal Special Judge for NDPS Act Cases, Chennai.
2. The petitioner, who has been arraigned as 8th accused, is charged for the offence under Section 8(c) r/w Section 29 of the NDPS Act, 1985. On receipt of vital information, the respondent Intelligence Officer attached to Narcotic Control Bureau allegedly recovered 15.350 kgs of Heroin on 22.9.2002 from the possession of A.2 to A.6 in this case.
3. The first accused Mohamed Saheed Md. Ismath and the second accused S. Kugadas @ Das, have allegedly given confession statements under Section 67 of the NDPS Act, implicating the petitioner R. Mayilvahanan, who has been lodged in Central Prison, Bangalore in connection with another case under the NDPS Act in the State of Karnataka.
4. The respondent-Intelligence Officer, duly approached the Special Court for NDPS Act Cases, Bangalore, seeking permission for interviewing the petitioner herein in the Central Prison, Bangalore. It is the contention of the prosecution that the said Mayilvahanan, the petitioner herein, failed to furnish any information in the interview undertaken by the respondent-Intelligence Officer as per the orders of the High Court of Karnataka.
5. The respondent-Intelligence Officer pleaded with the learned Principal Special Judge for NDPS Act Cases, Chennai, to take steps to bring the petitioner herein from Central Prison, Bangalore to face the trial in C.C.No.102 of 2003.
6. The trial Judge had chosen to split up the case against the petitioner and has conducted the trial and acquitted all the other accused by judgment dated 30.8.2004. Now the fact remains that the complainant-Intelligence Officer has preferred an appeal in C.A. No. 1149 of 2004 against the order of acquittal before this Court and this Court was pleased to issue warrant of arrest as against the other accused for the offence under Section 391 of the Code of Criminal Procedure.
7. The petitioner inter alia has contended that the whole case of the prosecution as regards the petitioner herein rests only on the alleged confession statement given by the first accused Mohamed Saheed Md. Ismath and the fifth accused Karan Singh. When the other accused had already faced the trial after splitting up of the case and received a verdict of acquittal, the petitioner cannot be chargesheeted based on the alleged confession statements of A.1 and A.5 under Section 30 of the Evidence Act.
8. The learned Special Public Prosecutor appearing for the respondent would submit that just because the trial was split up for no fault of the respondent as against the petitioner herein, the petitioner cannot claim immunity under Section 30 of the Evidence Act, inasmuch as the prosecution is toying with the proposal of examining the fifth accused in the split up case as against the petitioner. It is his further submission that there is no bar for the prosecution to examine one of the accused in this case as regards his confession statement implicating one of the accused, as the accused who gave confession statement has already been acquitted in this case.
9. The mobile phone which was allegedly used by the petitioner herein from Central Prison, Bangalore at the time of commission of the henious crime was not recovered in this case based on the alleged confession statements of the first and the fifth accused. Of course, the respondent-Intelligence Officer had taken some steps to examine the accused for the purpose of recovering the cellphone alleged to have been used by the petitioner for the purpose of hatching a criminal conspiracy to commit the offence, but it was of no avail as the petitioner had reportedly not co-operated with the process of investigation based on the alleged confession statements of A.1 and A.5.
10. I am at a loss to understand as to why the legal avenues available were not explored by the learned Principal Special Judge for NDPS Act Cases, Chennai, to secure the petitioner herein, who was jailed in Central Prison, Bangalore for the purpose of facing the trial of the case pending before the said Court.
11. The records would reflect that when the trial of this Case as against the other accused was going on after splitting up the case as against the petitioner herein, the petitioner had escaped from the Central Prison, Bangalore and absconded. Of course, thereafter, he had been apprehended and put behind the bars in Central Prison, Bangalore. The learned Principal Special Judge for NDPS Act Cases, Chennai, has miserably failed to take concrete steps even after the prosecution had sounded him about the availability of the petitioner in Central Prison, Bangalore.
12. As rightly pointed out by the learned senior counsel for the eighth accused, except the reference as to the complicity of the petitioner in the confession statement of A.1 and A.5, there is no material on record to incriminate the petitioner herein. The matter has now been pending as against the petitioner even without framing charge against him.
13. Section 30 of the Indian Evidence Act reads as follows:-
"Section 30. Consideration of proved confession affecting person making it and others jointly under trial for same offence.---When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession." (Explanation.---"Offence" as used in this Section, includes the abetment of, or attempt to commit, the offence.) A bare reading of the Section would reveal that joint trial is a pre-requisite to bank on Section 30 of the Indian Evidence Act to draw inspiration from the confession statement of the co-accused.
14. Straightaway, let me refer to an authority, which applies squarely to the facts and circumstances of this case, in Suresh Budharmal Kalani v. State of Maharashtra 1998 SCC (Cri) 1625 wherein the Hon'ble Supreme Court has categorically held that the confession of an accused, who has been discharged, is not at all admissible as against a co-accused. It has been further observed that the trial Court is not justified in taking into consideration such confession of the discharged accused for framing charges against the co-accused on the ground that the prosecution could examine him as a witness for establishing the facts disclosed in his confession.
15. There is no dispute to the well settled position of law that the confession statement of an accused implicating the co-accused can be used only when the trial is being conducted jointly with the co-accused. The plea of the respondent that the respondent is toying with the proposal to examine the fifth accused, who has already been acquitted in this case, has to be rejected outright in view of the above ratio laid down by the Hon'ble Supreme Court.
16. Of course, in the authority in D. Sathiyamoorthy v. State Rep., By Inspector of Police, Spe/Cbi, Madras 1998 (1) MWN (Cr.) 234, this Court has chosen to entertain the petition filed under Section 311 of the Code of Criminal Procedure to summon the convicted co-accused to examine as additional witness, as the prosecution is entitled to project the best possible evidence available before the Court to prove the fact.
17. That was not a case where an attempt was made by the prosecution to establish the guilt of an accused based on the confessional statement of the co-accused who was convicted or acquitted. In the said case, it appears that an accused having pleaded guilty received a verdict of conviction in a corruption case and thereafter the case as against the co-accused was split up, the prosecution filed an application under Section 311 of the Code of Criminal Procedure, to summon the convicted co-accused as an additional witness to establish the guilt of the co-accused, who is facing trial later in point of time. This Court has held in such circumstances that there is no impediment for the prosecution to bring such a witness during the course of trial to establish the guilt of the co-accused.
18. In this case, the charge has not been framed as against the petitioner herein. The Court will have to consider as to whether there is any available material on record to frame the charge as against the petitioner. In the judgment of the Hon'ble Supreme Court referred to above, it has been categorically observed that the Court is required to confine its attention only to those materials collected during the course of investigation, which can be legally translated into evidence and not open further evidence that the prosecution may adduce in the trial which would commence only after the charges are framed and the accused denies the charges.
19. If charges had already been framed as against the petitioner based on the incriminating materials available on record, there may not be any impediment for the prosecution to examine the co-accused, who was acquitted or convicted as the case may be to establish the guilt of the petitioner, but when the charges have not been framed against the petitioner and the petitioner has questioned the propriety of the trial Court in proposing to frame a charge without any foundation or basis, the prosecution cannot be permitted to project further evidence to be let in as a basis for framing a charge as against the petitioner.
20. As there is no material on record implicating the petitioner prima facie that he had committed an offence as projected by the prosecution, no charge can be framed as against him. The presumption under Section 35 of the NDPS Act, will come into play only in a case where there is some material to rope in the petitioner in the offence alleged. The Court cannot presume animus of the petitioner to commit an offence under NDPS Act, without any scrap of evidence available on record except the confession statements of the co-accused, which are found to be not legal evidence. The presumption of culpable mental state without any iota of material as against a person will be a very dangerous trend. The Court accepts the above submission made by the learned senior counsel for advocate on record for the petitioner/8th accused.
21. In the result, the split up case in C.C.No.102 of 2003 on the file of the learned Principal Special Judge for NDPS Act Cases, Chennai, as against the petitioner herein stands quashed and the criminal original petition stands allowed.