Bangalore District Court
The Senior Intelligence Office vs Abdul Rasheed Ghouse on 27 February, 2016
IN THE COURT OF THE XXXIII ADDL.CITY CIVIL &
SESSIONS JUDGE & SPL. JUDGE (NDPS),
BANGALORE. CCH.33.
PRESENT:
Sri. D.Y. BASAPUR, B.Com., LL.B. (Spl.)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BENGALURU.
DATED: THIS THE 27th DAY OF FEBRUARY 2016
SPL.C.C. NO.01/2014
COMPLAINANT : The Senior Intelligence Office,
Directorate of Revenue Intelligence,
Bangalore Zonal Unit, Bangalore -
560 043.
(By Spl. Public Prosecutor)
V/S.
ACCUSED : ABDUL RASHEED GHOUSE
SHARIFF, S/o. Ghouse Sheriff,
No. 53/27, Dr. Besant Road,
Royapetha, Chennai-600014.
(By Sri KSV., Adv.)
Date of Commission of offence: 2.6.2013
2. Date of report of offence: 2.6.2013
3. Arrest of the accused : 4.6.2013
2
4. Date of release of accused on 18.1.2014
bail:
5. Period undergone in custody: 7 months 14 days
6. Date of commencing of 9.11.2015
recording Evidence :
7. Date of closing of Evidence : 25.1.2016
8. Name of the complainant: Sri Dattakumar
9. Offence complained of : U/s.9(A) R/w.Sec.25(A),
28(A) of NDPS Act
R/w.Sec.135A of the
Customs Act
10. Opinion of the Judge : Offence proved
11. Order of sentence : As per final order
---
JUDGMENT
The Senior Intelligence Office, Directorate of Revenue Intelligence, Bangalore Zonal Unit, Bangalore has lodged the above complaint before Court against the accused U/s.9(A) R/w.Sec.25(A), 28(A) of NDPS Act R/w.Sec.135A of Customs Act.
CCH-33 3 SPl.C.C.1/2014
2. Brief facts of the case are as under:
On 2.6.2013 the complainant received credible information that one person is transporting or exporting narcotic drugs to different country without there being any pass or permit and the said person is schedule to depart from Bangalore in Indigo Airlines. Therefore complainant has kept surveillance in the Airport and ultimately succeeded in apprehending accused. On checking the checked-in baggage of the accused, a white coloured crystalline substance was concealed in the baggage. A pinch of the said powder was tested and it responded positive for Amphetamine. The accused did not possess any pass or permit for the same. On weighing the said article in the balance taken by the Intelligence Officer, it weighed 9624.92 grams. Therefore the said quantity of Amphetamine powder was recovered under mahazar. Certain quantity of the powder has been taken out for the purpose of sample, kept in separate brown colour envelope and thereafter formalities required under N.D.P.S. 4 Act have been complied with. Accused has been arrested and thereafter his statement U/Sec.67 of N.D.P.S. Act has been recorded wherein he has admitted possession of the said powder. Thereafter case has been registered against him for the above offences contravened U/Sec.9(A) R/w.Sec.25(A), 28A of NDPS Act R/w.Sec.135A of Customs Act.
3. After taking cognizance registered the case. Copies of the prosecution papers were supplied to accused U/Sec.207 of Cr.P.C. After hearing, Charge framed U/Sec. U/s.9(A) R/w.Sec.25(A), 28A of NDPS Act R/w.Sec.135A of Customs Act, read over and explained to accused, he pleaded not guilty and claimed to be tried.
4. In support of the case, prosecution has examined P.Ws.1 to 6 and got marked Exs.P1 to P20 and M.Os.1 to 05. After closure, accused is examined U/Sec.313 of Cr.P.C., he CCH-33 5 SPl.C.C.1/2014 denied the incriminating circumstances appeared against him and not chosen to adduce evidence for his defence.
5. Heard the arguments on both sides.
6. The points for consideration are as under:
1. Whether the prosecution proves that on 2.6.2013 at 7-30 pm., at Bangalore International Airport, Devanahalli, Accused was found in possession of 9.624 Kgs., of drug of pseudoephedrine without permission and licence and with dishonest intention of manufacturing, transporting and selling it to the public and thereby accused has committed an offence punishable under Section 25(A) of N.D.P.S. Act?
2. Whether the prosecution proves that on 2.6.2013 at 7.-30 pm., at Bangalore International Airport, Devanahalli, Accused made attempt to transport the contraband to Kualalumpur and thereby committed offence punishable U/Sec.28 of N.D.P.S. Act R/w.Sec.135A of Customs Act?
3. What order?6
7. My findings on the above points are as under:
Point No.1: In the Affirmative Point No.2: In the affirmative Point No.3: See the final order for the following:
REASONS
8. POINT NOs1 & 2: These 2 issues are interlinked with each other. Hence for the sake of convenience, they are taken together for consideration.
9. Learned Spl. P.P. argued that as per the evidence of P.Ws.1 to 6, Exs.P.1 to P.20 and M.Os.1 to 5, prosecution has proved the guilt. Learned counsel for accused argued that the mandatory provisions are not complied, so many contradictions and discrepancies found in their evidence.
10. On careful perusal of material placed before the Court, P.W.1 has stated that on 3.6.2013 at 11.00 am., he received information from fax from Chennai that one Abdul Rasheed illegally transporting the drugs from Bangalore CCH-33 7 SPl.C.C.1/2014 Airport to Delhi. He informed to C.Ws.2 to 4 and directed them to conduct raid and handed over the testing machine and DRI seal. They went to the spot and seized 9.624 Kgs., Amphetamine and produced on the same day at 10.00 pm., along with other documents. He sent information as per Ex.p1 to his superior officer and obtained permission. He sent a letter to Dy. Commissioner, Chennai as per Ex.P3 along with mahazar and statement of accused and submitted report Ex.P4 for success of raid. In the cross examination of P.W.1, stated that he has not reduced the information in writing and he is not a member of the raiding team. He has handed over the test kit and seal to raiding team and same is returned in office. Of course, information received by P.W.1 is not reduced in writing. However, he is not a member of raiding team. He is a Superior officer. When Superior officer personally receives the information, the question of reducing the same in writing and obtaining permission does not arise. On the information received by him, P.W.1 called the raiding members informed the information and directed them to 8 conduct the raid. So the contention of learned counsel for accused regarding information not reduced in writing is not sustainable.
11. P.W.2 stated that on 3.6.2013 at 2.30 pm., P.W.1 directed him to participate in raid along with C.Ws.2, 3 and one Sri Anand Kuroop. They went to Bangalore International Airport and obtained Manifest and found the name of passenger Abdul Rasheed and brought the said Abdul Rasheed to office. C.W.2 informed the legal right of the accused before personal search who agreed to be searched by C.W.2. they conducted personal search of the accused no article found and drew mahazar Ex.P5. In the cross examination of P.W.2 he has stated that P.W.1 has not shown the fax information received by him and name of accused. He obtained manifest from Airport authority, then went to Indigo office. Accused brought to Indigo office. He has stated that he conducted personal search of the accused but no written notice issued to him. When P.W.2 is one of the raiding CCH-33 9 SPl.C.C.1/2014 members as per oral instructions he conducted personal search. In notice issued to accused mentioned that he is a gazetted officer, but no explanation regarding existing legal right of the accused.
12. P.W.3 stated that on 3.6.2013 at 2.00 pm., C.W.1 informed that he received information regarding drug transporting to Delhi from Bangalore International Airport and directed to conduct raid. he went to Airport along with P.W.2, C.W.3 Anand Kuroop, Rajeev Kumar Singh at 4.30 pm. the accused was sitting in Indigo Flight No.6E122 at seat No.26D along with cabin bag, two check-in bags, he secured C.Ws.5 and 6 panchas and brought the accused to Indigo Airlines office. He further stated that he informed the existing legal right of the accused regarding personal search to be conducted before Gazetted officer or Magistrate. Accused consented to be searched by him as he being a gazetted officer. He issued notice Ex.P6. On personal search no articles found. In his purse found Malaysian and Indian 10 currency and in cabin bag found laptop, Samsung mobile and cloths. In two check-in bags 14 packets containing white powder, they seized and taken three sample packets containing 25 grams each and packed separately. At the bottom of the said bag they found one packet containing white powder, out of which 25 grams taken for sample. On the back side of the bag found 14 packets containing white powder and taken 25 grams each from all the 4 packets for sample and drew mahazar. In the cross examination of P.W.3 he has stated that P.W.1 has not handed over the fax received by him. he orally informed the message received by him. P.W.1 has not issued in writing to conduct raid. P.W.1 being a Superior Officer, orally instructed to conduct raid, the question of issuing notice in writing does not arise. He admits that in Ex.P6, legal right of the accused is not examined. P.W.3 further stated that file No., is mentioned on M.Os.1 to 4. He voluntarily stated that prior to leaving the office, they noted the file No., in office and they mentioned the CCH-33 11 SPl.C.C.1/2014 same on M.Os. He denied that signature of the accused forcibly taken on Ex.P8 voluntary statement.
13. P.W.4 has stated that on 3.6.2013 at about 4.30 pm., C.W.1 informed that he received information regarding drug transporting to Delhi from Bangalore International Airport and directed to conduct raid. He went to Airport along with P.W.2, C.W.3 Anand Kuroop, Rajeev Kumar Singh at 4.30 pm. The accused was sitting in Indigo Flight No.6E122 at seat No.26D along with cabin bag, two check-in bags, he secured C.Ws.5 and 6 panchas and brought the accused to Indigo Airlines office. He further stated that they informed the existing legal right of the accused regarding personal search to be conducted before Gazetted officer or Magistrate. Accused consented to be searched by him as he being a gazetted officer. He issued notice Ex.P6. On personal search no articles found. In his purse found Malaysian and Indian currency and in cabin bag found laptop, Samsung mobile and cloths. In two check-in bags 14 packets 12 containing white powder, they seized and taken three sample packets containing 25 grams each and packed separately. At the bottom of the said bag they found one packet containing white powder, out of which 25 grams taken for sample. On the back side of the bag found 4 packets containing white powder and taken 25 grams each from all the 14 packets for sample and drew mahazar. P.W.4 in his cross examination stated that he do not know whether using of office vehicle is mentioned in log book. No inventory prepared and not made any attempts to produce the accused before independent gazetted officer. no notice issued U/s.67 of NDPS Act to the accused to appear before him to record the voluntary statement. When accused was in their custody and recorded the voluntary statement, such being the case, issuance of separate notice to appear does not arise.
14. P.W.6 has stated that during the year 2013 at Night DRI officials seized two bags from one passenger wherein controlled substance M.Os.1 to 5 seized and drawn mahazar CCH-33 13 SPl.C.C.1/2014 Ex.P5.In his cross examination stated that no notice issued to him. He do not know how many signatures were put on that day. He has not read over the records prior to putting his signature. He denied that no article seized in his presence. P.W.6 is an independent person. He is no where concerned to raiding party. P.W.6 was working as Manager, Airport Operations at Bangalore Airport. So, when he was on duty at night hours, I.O secured him and conducted the panchanama in his presence. So, the testimony of P.W.6 is reliable and creditworthy. The testimonies of P.W.2 to 4 are corroborated by P.W.6.
15. P.W.5 has stated that on 6.6.2013 he opened the sample articles and conducted various tests and issued report Ex.P17 and opined that sample articles responded positive for Pseudoephedrine Hydrochloride. In his cross examination stated that the said Pseudoephedrine Hydrochloride is used as a raw material for production of medicine. However, the said Pseudoephedrine Hydrochloride comes under controlled 14 substance. In the cross examination of P.Ws.1 to 5 nothing is elicited except denial. So the testimonies of PW.s.1 to 5 are corroborated to each other, reliable and credit worthy.
16. Ex.P1 & 2 Report sent to Superior officer by C.W.1 after success of raid. So, Sec.57 of NDPS Act is complied. Ex.P3, letter issued to Deputy Director regarding seizure of 4.950 Kgs., from Mohammed Rasheed and requested to record the statement. Ex.P4 seizure of property handed over to Customs Godown under acknowledgement. Ex.P5 mahazar reveals regarding details of seizure of the articles in the presence of panchas. Ex.P5 is proved by corroborative independent panch. Ex.P6 notice issued to accused and informed his right of his personal search before Magistrate or Gazetted Officer, accused endorsed that to be examined before Gazetted Officer. He has written in his own handwriting and put his signature. When accused voluntarily given consent to be searched by Gazetted Officer, the production of accused before independent Gazetted Officer CCH-33 15 SPl.C.C.1/2014 does not arise. Ex.P7 and Ex.P8 Annexure to mahazar, Ex.P9 voluntary statement of accused has a presumptive value as he voluntarily put his signature after understanding the contents of statement. Ex.P10 Airlines ticket, Ex.P11 Seat Assignments of Indigo Airlines, Ex.P12 boarding pass are seized from the possession of the accused. Said documents are issued by Indigo Company. It cannot be believed that said documents are created by the prosecution.
17. Ex.P13 deposit of seized goods in the Customs godown immediately. Ex.P16 arrest memo reveals that accused arrested at International Airport. Even arrest of accused at the particular point of time at Airport is not disputed. The above documents reveal that the accused book Air Ticket, made attempt to fly to New Delhi.
18. P.W.2 to 4 specifically stated that P.W.1 received the information that a person is trying to transport the 16 controlled substance. As per the information and directions issued by P.W.1, P.W.2 conducted raid along with his team members and seized the articles and arrested the accused. Of course, information is not reduced in writing. However, P.W.1 is the Superior officer who himself received the information. Such being the case, recording of information in writing does not arise. If P.W.2 to 4 had received the information who are subordinate officers to P.W.1, then only they have to reduce the information in writing and send it to superior officer to obtain permission to conduct raid. Such being the case not reducing the information in writing by P.W.1 himself does not mean that prosecution has not complied the mandatory provisions under Sections 41 and 42 of NDPS Act.
19. The learned SPP has relied on decisions reported in 2014(4) Crimes 266 (Karnt.) M.D.Kohiunddin @ Phohinuddin Vs., State, 2015(4) Crimes 153 (SC) Kulwinder Singh and another Vs., State of Punjab. In the CCH-33 17 SPl.C.C.1/2014 above decisions Hon'ble Apex Court held that Sec.50 does not apply if recovery from truck or suitcase. It applies only in a case of personal search of a person. Non-compliance of section 50 does not vitiate the conviction, 2015 SAR (Criminal) 597 in the case of Kulwinder Singh and another Vs., State of Punjab wherein it is held that once possession is found, the accused is presumed to be conscious possession.
(1997) 3 Supreme Court Cases 721 in the case of K I Pavunny Vs., Asst, Collector (HQ) Central Excise Collectorate, Cochin, wherein it is held that a voluntary confessional statement given by accused in pursuant to his appearing against summons or on surrender held, cannot be said to have been obtained by threat, inducement or promise, hence, is admissible in evidence for prosecution U/s.135 of Customs Act or other relevant statutes. The facts and circumstances of the said decisions are similar to the case on 18 hand. So, the statement of the accused is admissible and also he is having a conscious possession.
2015(2) Crimes 219 (SC) Yunus Zia Vs., State of Karnataka and another wherein it is held that;
(a) Cr.P.C., 1973 Sec.2(d) and 154 - respondent 2 an Inspector of Police, though deputed to Lokayuktha - Empowered to act suo-motu on published reports against Appellant warranting registration of FIR and investigate the matter.
(d) Administration of justice - Fair investigation
- Inspector of Police deputed to Lokayuktha - Suo moto registering FIR and investigating the case - investigation transferred to Corps of Detectives (COD) of the State.
Facts and circumstances of the above decision is applicable to the case on hand as IO is empowered to act suo-motu on information warranting registration of FIR and investigating the matter in other law, when FIR discloses commission of cognizable offences and trial case is made out.
CCH-33 19 SPl.C.C.1/2014 2004(3) Crimes 109 (SC) S Jeevanantham Vs., State through Inspector of Police, Tamil Nadu wherein it is held that contention of P.W.8 Inspector who got FIR registered after search and recovered being complainant himself conducted investigation and that was illegal. Appellant failing to point out any circumstances by which investigation caused prejudice or was biased against the appellant. P.W.8 was not in any way personally interested in the case. Conviction could not be disturbed. Facts and circumstances of the above decision is applicable to the case on hand as accused failing to point out any circumstances by which investigation caused prejudice or biased against him and also IO was not in any way personally interested in the case.
2002 (3) Supreme 95 Gopal Vs., State of MP wherein it is held that contraband was recovered from a heap of Kadvi lying on the boundary of agricultural fields Sy.Nos.1511 and 1517. Conscious possession of the accused was not proved. 20 Facts and circumstances s of the above decision is not similar to the case on hand as prosecution seized in the presence of the accused in his rented house.
1996 (1) Crimes 358 (SC) Ummed Vs., State of Rajasthan wherein it is held that complainant and I.O was one and the same person. Place was recovery in common possession of the accused and his brother against whom also search warrants were issued. No action was taken against brother of appellant. Investigation suffers from basic infirmity and conviction cannot be sustained.
AIR 2002 SC 3658 between Narayanaswamy Ravishankar Vs., Asst. Director, Directorate of Revenue Intelligence wherein it is held that search and seizure taking place at Airport which is a public place, Provisions of Sec.43 would be applicable but not of Sec.42. Question of non-compliance of provisions of Sec.42 would be wholly irrelevant. Further held that witness who made the seizure was examined. Non CCH-33 21 SPl.C.C.1/2014 examination of witness by whom mahazar was drawn would be of no consequence.
(2007) 6 SCC 410 between Ravindran @ John Vs. Superintendent of Customs & 2011 AIR SCW 3106 Ram Singh Vs., Central Bureau of Narcotics wherein it is held that merely because officers of Central Bureau of Narcotics are invested with powers of an officer-in- charge of police station shall not make them police officers within meaning of Sec.25, 26 of Evidence Act. They are not conferred with power to submit report U/s.173 of Cr.P.C., which is necessary to make them police officers. Confession recorded by these officers is admissible in evidence. Further, held that confession recorded by officers of Narcotics Bureau, accused produced before court on several dates not complaining of any torture or harassment in recording confession, confession is voluntary. Retraction of confession for first time in statement U/s.313 of Cr.P.C., irrelevant. 22 Conviction for offence U/s.8, 18 of NDPS Act can be maintained solely on basis of such confession.
2011 (1) SCC (Cri) 1191 Jarnail Singh Vs., State of Punjab wherein it is held that Sec.50 can be invoked only in cases where drug/narcotic substance is recovered as a consequence of body search of accused. In case recovery is made from container being carried by individual, provisions of Sec.50 would not be attracted.
(1994) 3 SCC 299 in state of Punjab Vs., Balbir Singh wherein it is held that if empowered officer while effecting search or arrest in accordance with Sec.100, 165 of Cr.P.C., fails to record reasons such a failure will not amount to an illegality vitiating the trial.
ILR 2004 Kar. 3855 between The Intelligence officer, Bangalore and others Vs., Arshad Saleem Khan and others wherein it is held that the special procedure of arrest, search and seizure U/s.50 becomes applicable only to the officers named in Sec.42 of the Act. The CCH-33 23 SPl.C.C.1/2014 provisions of Sec.50 does not apply to first category of empowered Gazetted Rank officers contemplated in Sec.41(2).
2000 SCC (Cri) 496 between Abdul Rashid Ibrahim Mansuri Vs., State of Gujarat wherein it is held that requirements U/s.42 of taking down in writing the information received and sending a copy thereof to the immediate official superior, non compliance with effect action taken on unrecorded information, held would become suspect and one causing prejudice to the accused but would not ipso-facto vitiate the trial.
(2010) 4 SCC 445 between Bahadur Singh Vs., State of Haryana wherein it is held that with advancement of technology and availability of high speed exchange of information, some of the provisions of NDPS Act including Sec.42 have to be read in the changed context. Delay caused in complying with provisions of Sec.42 could result in escape of offender or even removal of 24 contraband. Hence, substantial compliance is sufficient, if the information received were subsequently sent to the superior officer.
AIR 2000 SCC 403 in Sarjudas and another Vs. State of Gujarat wherein it is held that Charas was not found on person of accused, but it was found kept in a bag which was hanging on scooter on which they were riding. Said search cannot be said to be illegal on ground that accused were not informed of their right U/s.50 to be examined in presence of Gazetted Officer or Magistrate. Facts and circumstances of the above decisions are similar to the case on hand.
20. The learned counsel for the accused has relied on a number of decisions reported as under:-
2008(1) SCC (Cvi) 415 (Directorate of Revenue and another Vs., Mohammed Nisar Holia) it is held that CCH-33 25 SPl.C.C.1/2014 A) U/s.42, 43 and Sec.43 Explanation. Search in a place not open to the public though situated in public place (room of a hotel) based on prior information. Room in hotel if a public place U/s.43 explanation held whereas hotel is a public place, a room thereof occupied by guest may not be.
J) Sec.66 of NDPS Act fax copy pertaining to offence under the NDPS Act and Xeroxed copy thereof admissibility in evidence. fax copy illegible. Its contents not proved. True copy of fax message is legible but it is not got marked through witness. But the same is produced on 26.2.2016 with Memo, after hearing the arguments. Hence, the facts and circumstances of the above case is not similar to the case on hand.
AIR 1994 SC 1872 (State of Punjab Vs., Balbir Singh) it is held that (B) Sec.41 (1) & (2), 42 (1) held mandatory in nature. If there is a contravention that 26 would affect the prosecution case and vitiate the conviction.
(C) Sec.42(1) search and seizure empowered officer or an authorised officer U/s.41 (2) carrying out search, he would be doing so under Sec.100 and 165 Cr.P.C. However, if there is no strict compliance with provisions of Cr.P.C., search would not be illegal.
2007 (1) SCC 450 (Dilip and another Vs., State of MP) The facts and circumstances of the above cases are not similar to the case on hand as prosecution complied the mandatory provisions.
2007 (1) SCC (Cri) 744 (Ritesh Chakarvarti Vs., State of MP) wherein it is held that:
(B) Sec.50 and 42 proviso - recovery of contraband in presence of independent persons is important. Even presence of a Gazetted Officer by raiding team would not sub-serve the requirements of Sec.50.
CCH-33 27 SPl.C.C.1/2014 2011 Crl.L.J. 680 (Vijaysinh Chandubha Jadeja Vs., State of Gujarat) The facts and circumstances of the above cases are not similar to the case on hand as accused has given consent to be searched by P.W.1 who being a Gazetted Officer.
2013 Crl.L.J. 474 (Suresh and others Vs., State of Madhya Pradesh) wherein it is held that asking suspect to give his consent for searched by police does not constitute compliance with mandatory provision of Sec.50. Sec.50 make it imperative for police officer to inform suspect of his right to be searched before Gazetted Officer or Magistrate. Failure to so inform, vitiates conviction and sentence.
The facts and circumstances of the above case is not similar to the case on hand as Gazetted Officer P.W.1 specifically explained the right of the accused prior to be searched before Gazetted Officer or Magistrate.
28
2013 AIR SCW 312 (Sukhdev Singh Vs., State of Harayana) wherein it is held that (B) Sec.42 - requirement to reduce information in writing and send it forthwith to superior officer, is mandatory. Some delay in compliance is permissible only for special reasons, but compliance would be prior to recovery.
The facts and circumstances of the above case is not similar to the case on hand as information sent to superior officer immediately.
1996 Crl.L.J. 148 (Rubyana @ Smita Sanjib Bali Vs., State of Maharashtra) wherein it is held that:
(A) Sec.20, 21 of NDPS Act - prosecution must prove conscious and intelligent possession by accused.
The accused specifically stated in his voluntary statement regarding transportation of drug for which he will receive the CCH-33 29 SPl.C.C.1/2014 consideration amount. So voluntary statement of accused recorded by NCB officer has presumptive value. Hence, accused is having conscious possession of contraband. The facts and circumstances of the above case is not similar to the case on hand.
AIR 1954 SC 4 (Muthuswami Vs., State of Madras) wherein it is held that a confession should not be accepted merely because it contains wealth of detail which could not have been invented.
The above said decision held in respect of murder case, charge sheet submitted by police. The facts and circumstances of the above case is not similar to the case on hand as the present case is under NDPS Act.
2007 AIR SCW 497 (Francis Stanly @ Stalin Vs., Intelligence Officer, NCB, Thiruvananthapuram) wherein it is held that :
(C) while it is true that a confession made before an officer of the department of the 30 Revenue intelligence and the NDPS Act may not be hit by Sec.25 of Evidence Act, yet such a confession must be subjected to closure scrutiny than a confession made to private citizens or officials who do not have investigating powers under Act.
The facts and circumstances of the above case is not similar to the case on hand as confession of the accused is subject to closure scrutiny.
2009 (12) SCC 161 (Union of India Vs., Bal Mukund and others) wherein it is held that
(b) Narcotic Drugs and Psychotropic Substances Act, 1985 - S 67 confession - evidentiary value of - Holistic approach, requirement of - Held, court while weighing evidentiary value of confessional statement to see ground realities - Authorities under NDPS Act can always show that accused not arrested before such statements were recorded -
circumstances attendant to making of such statements should be taken into consideration - hence court has to take a CCH-33 31 SPl.C.C.1/2014 holistic approach - On facts, conduct of raid early in the morning - Presence of large number of police officers including high ranking officers - exhibits indicating accused were interrogated - Doubtful whether accused made statements on the road - In the circumstances, held, accused had not made voluntary statement Evidence Act, 1872 - Ss.26 and 30.
The facts and circumstances of the above case is not similar to the case on hand as no police officers were present in the case on hand during confession.
AIR 1979 SC 705 (Sevantilal Karsondas Modi Vs., State of Maharashtra and another) wherein it is held that:
Sec.24 of Evidence Act - Offence U/s.120(B) Penal Code R/w.135 Customs Act - confession made to custom officer under coercion - conviction cannot be sustained.
Crl.A.412/07 (Ravi and others Vs., By Manna E Khelli Police Bidar District) 32 The facts and circumstances of the above cases are not similar to the case on hand.
21. Merely, some minor discrepancies found in the prosecution witnesses, is not a ground to discard their reliable corroborative evidence. Some minor contradictions and discrepancies bound to be happen, while witnesses depose before court after many years. So the testimonies of P.Ws.1 to 6 are corroborative and consistent to each other.
Their testimony is supported by documentary evidence. So there is no reason to disbelieve the evidence of prosecution. For the above, prosecution has complied the mandatory provisions U/s.41, 42, 50 and 57 of NDPS Act and also proved that the seizure of contraband from the possession of accused at the spot. Hence, the prosecution has proved the guilt of the accused beyond reasonable doubt. Accordingly, I answer Point Nos.1 & 2 in the affirmative.
CCH-33 33 SPl.C.C.1/2014
22. POINT NO.3:- In the result, I proceed to pass the following:
ORDER Acting under Section 235(2) Cr.P.C accused is convicted for the offences punishable U/Sec.25(A), 28, of N.D.P.S. Act R/w.Sec.135A of Customs Act..
To hear before Sentence.
[Dictated to the Stenographer directly on computer, typed and computerised by her, corrected, signed and then pronounced by me in Open Court on this the 27th day of February 2016) (D.Y.BASAPUR) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.34
HEAR BEFORE SENTENCE Accused is present. He submits that he is sole earning member of his family having 2 school going children. He is innocent and poor person. He is not involved in any offence, previously. Further, he filed Memo stating that he is appointed as LDC in IRDA in Register No.0202160004 and he is under Training at Chennai. Hence, prays for taking lenient view.
The learned SPP argued that he has committed heinous offence. It is punishable upto 10 years R.I., and fine of Rs.1,00,000/-. So he is not entitled for any lenient view.
On perusal of order sheet, after enlarge on bail accused is attending the court regularly. Taking into consideration the nature of offence, social and economic status of accused and the reasons for which he appeared to have committed the offence, conduct and dependency of the family members and also as he is appointed as LDC in Railways, I feel it is a fit case to take lenient view in the interest of justice. The CCH-33 35 SPl.C.C.1/2014 learned counsel for the accused relied on the judgment and sentence passed in Crl.Appeal.No.1311/14 & Crl.M.A.No.14713/2014 on the file of Hon'ble High Court of New Delhi dated 24.2.2015 between NCB Vs., Nthadiseng Josephina Bulaya and another. In the said case trial court convicted and passed sentence one year RI and fine of Rs.75,000/- each to both accused who were women and foreign nationality for the offence punishable U/s.25(A) of NDPS Act. In the Appeal filed by the complainant Hon'ble High Court disposed the Appeal directing the accused to pay fine of Rs.75,000/- only. The facts and circumstances of the above case is similar with the case on hand. Hence, I proceed to pass the following:-
ORDER Accused is sentenced to undergo 7 months R.I., and he shall pay fine of Rs.1,00,000/- in default, he shall undergo 6 months SI for the offence punishable U/Sec.25(A) of NDPS Act.36
Accused is sentenced to undergo 7 months R.I., and he shall pay fine of Rs.1,00,000/- in default, he shall undergo 6 months SI for the offence punishable U/Sec.28 of NDPS Act.
Both sustentative sentences shall run concurrently.
Further, JC period of accused from 4.6.2013 to 18.1.2014 is given set up.
The bail bond of the accused shall stands cancelled.
M.Os.1 to 5 bag, bulk and samples are ordered to be returned to DRI, BZU, Bangalore, with direction to destroy as per law, after appeal period.
(D.Y.BASAPUR) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.
CCH-33 37 SPl.C.C.1/2014 ANNEXURE
1. List of witnesses examined for the:
(a) Prosecution:
P.W.1 : Dattakumar
P.W.2 : Sridhar
P.W.3 : Srinath
P.W.4 : Sampath Kumar
P.W.5 : Suma
P.W.6 : Saptashree Mukarjee
(b) Defence :
NIL
2. List of documents exhibited for the:
(a) Prosecution:
Ex.P.1 : Letter (a) sig.
Ex.P.2 : Form F (a) sig.
Ex.P.3 : Letter
Ex.P.4 : Letter
Ex.P.5 : Panchanama (a) (b)sig.
Ex.P.6 : Notice to accused (a) sig.
Ex.P.7 : Annexure A to mahazar (a) to (e) sigs.
Ex.P.8 : Annexure A to mahazar (a) to (e) sigs.
Ex.P.9 : Statement of accused (a) sig.
Ex.P.10 : E-Ticket (a) to (d) sigs.
Ex.P.11 : List of manifest (a) to (d) sig.
Ex.P.12 : Boarding pass (a) to (d) sigs.
Ex.P.13 : Deposit of seized goods in the custom
godown
Ex.P.14 : Remand application
Ex.P.15 : Complaint (a) sig.
Ex.P.16 : Arrest memo
Ex.P.17 : F.S.L report
38
Ex.P.18 : Specimen seal
Ex.P.19 : Test memo
Ex.P.20 : Acknowledgement of F.S.L
(b) Defence:
NIL
3.List of Material Objects admitted in evidence:
M.O.1 : Bag (a) to (h) covers
M.O.2 : Violet colour Trolley bag
M.O.3 & 4 : Bulk
M.O.5 : Samples
(D.Y. BASAPUR)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*
CCH-33
39 SPl.C.C.1/2014