Madras High Court
Wasib Khan Liaquat Ali … vs The Intelligence Officer on 25 January, 2023
Author: P.Velmurugan
Bench: P.Velmurugan
Crl.A.Nos.11 & 125 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.01.2023
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.A.Nos.125 & 11 of 2020
and Crl.M.P.No.2332 of 2020
Crl.A.No.125 of 2020
Wasib Khan Liaquat Ali … Appellant
Vs
The Intelligence Officer,
Narcotics Control Bureau,
Chennai Zonal Unit,
Chennai.
(NCB F.No.48/1/01/2016-NCB-MDS) … Respondent
Prayer: Criminal Appeal filed under Section 374(2) of Criminal
Procedure Code, against the judgment dated 21.11.2019 passed by the
learned I Additional Special Judge for NDPS cases at Chennai
convicting the appellant under Section 8(c) read with.22(c), Section
8(c) read with.29, Section 8(c) read with.27A and Section 8(c) read
with.23(c) r/w.28 of NDPS Act sentencing him to undergo rigorous
imprisonment for 10 years for each of the offences and to pay a fine of
Rs.1,00,000/- in each of the offences in default to further undergo
rigorous imprisonment for 1 year for each of the offences. The
sentence of imprisonment was ordered to run concurrently and the
https://www.mhc.tn.gov.in/judis
Page No.1/28
Crl.A.Nos.11 & 125 of 2020
period undergone was ordered to be set off challenging the above
conviction and sentence.
For Petitioner : Mr.R.C.Paul Kanakaraj
For Respondent: Mr.N.P.Kumar
Spl.Public Prosecutor for NCB cases
Crl.A.No.11 of 2020
M.Muruganandam … Appellant
Vs
Intelligence Officer,
Narcotic Control Bureau,
Chennai Zonal Unit,
Chennai-90. …
Respondent
Prayer: Criminal Appeal filed under Section 374(2) of Criminal
Procedure Code, against the judgment dated 21.11.2019 in C.C.No.17
of 2016, in NCB F.No.48/1/01/2016-NCB-MDS, passed by the Ist
Additional Special Judge for NDPS Act at, Chennai, convicting the
appellant U/s 8(c) read with 29 & 8(c) read with 23(c) r/w 28 of NDPS
Act, 1985 and sentencing him to undergo rigorous imprisonment for
10 years for each count and to pay a fine of Rs.1,00,000/- (Rupees One
Lakh only) for each count in default to undergo a period of 1 year for
each count and to set aside the order passed by the trial Court.
For Petitioner
in both the Crl.As : Ms.A.L.Ganthimathi
https://www.mhc.tn.gov.in/judis
Page No.2/28
Crl.A.Nos.11 & 125 of 2020
For Respondent
in both the Crl.As : Mr.N.P.Kumar
Spl.Public Prosecutor for NCB cases
COMMON JUDGMENT
The respondent/ Police filed a case against the appellants in NCB F.No.48/1/01/2016-NCB-MDS and after completing investigation and all formalities, laid charge sheet, which was taken on file in C.C.No.17 of 2018 by the learned Ist Additional Special Judge (NDPS cases), Chennai.
2.The learned Special Judge, after completing the formalities framed the charges against the appellants for the offences under Sections 8(c) read with 29, 8(c) read with 22(c), 8(c) read with 23(c), 8(c) read with 27A and 8(c) read with 28 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “ NDPS Act”).
3.After framing the charges, on the side of the prosecution, in https://www.mhc.tn.gov.in/judis Page No.3/28 Crl.A.Nos.11 & 125 of 2020 order to prove the charges, 8 witnesses were examined as PW1 to PW8, 75 documents were marked as Ex.P1 to Ex.P75 and 15 material objects were exhibited as M.O1 to M.O.15.
Name of the accused Offence under Section Sentence A1 – Washib Khan 1)8(c) r/w 22(c) of the Rigorous imprisonment Liaqut Ali NDPS Act for a period of 10 years and to pay fine of Rs.1,00,000/-, in default to undergo Rigorous imprisonment for a period of one year
2)8(c) r/w 29 of the Rigorous NDPS Act imprisonment for a period of 10 years and to pay fine of Rs.1,00,000/-, in default, to undergo Rigorous imprisonment for a period of one year
3)8(c) r/w 27A of the Rigorous NDPS Act imprisonment for a period of 10 years and to pay fine of Rs.1,00,000/-, in default to undergo Rigorous imprisonment for a period of one year
4)8(c) r/w 28 of the Rigorous NDPS Act imprisonment for a period of 10 years and to pay fine of https://www.mhc.tn.gov.in/judis Page No.4/28 Crl.A.Nos.11 & 125 of 2020 Rs.1,00,000/-, in default, to undergo Rigorous imprisonment for a period of one year A2 - Muruganandam 1)8(c) r/w 29 of the Rigorous NDPS Act imprisonment for a period of 10 years and to pay fine of Rs.1,00,000/-, in default to undergo Rigorous imprisonment for a period of one year
2)8(c) r/w 28of the Rigorous NDPS Act imprisonment for a period of 10 years and to pay fine of Rs.1,00,000/-, in default, to undergo Rigorous imprisonment for a period of one year
4.Challenging the said judgment of conviction and sentence, A1 has filed the appeal in Crl.A.No.125 of 2020 and A2 has filed the appeal in Crl.A.No.11 of 2020. Since both the appeals are arising out of one and the same judgment, both are heard together and common judgment is being passed.
https://www.mhc.tn.gov.in/judis Page No.5/28 Crl.A.Nos.11 & 125 of 2020
5.The case of the prosecution is that, on 11.02.2016 PW-1 Mr.A.E.Ganeshan, Intelligence Officer of the respondent department had received a telephonic call from CISF personnel that “one Wasib Khan Liaquat Ali (the appellant herein) having passport No.G 6415184 is going to Malaysia through Air Asia flight No.AK12, which willl depart at 23.30 hrs. On 11.02.2016 under PNR No.WCTKPS Seat No.31A. During security check some tablets, injections etc., were found in large amount in his possession named Alphrazolam tablets IP- 1 mg, Vota Flam 50, Typoid Poly Saccharide Vaccine (IP) and Sustanon 25 injection without any prescription or valid documents.” The said Officer, had taken down the information and submitted the same under Ex,P-1 to his higher officer Mr.Devanand PW2. The said Officer on his instructions went to Chennai Anna International Airport and appointed two independent witnesses namely (10 Aniness Chakraborthy (PW-5) and Samraj (not examined) and they found the appellant at customs examination area. The Air Asia Staff were asked to bring his luggage. The Officers after complying necessary formalities under the NDPS Act, had seized 1045 strips each containing 10 tablets of Alprazolam (10450 tablets), injections in 20 https://www.mhc.tn.gov.in/judis Page No.6/28 Crl.A.Nos.11 & 125 of 2020 packets each containing 10 injections of Typoid Polu Saccharide Vaccine IP (200 injections), 50X1 ml ampules sustanm 250 and 486 strips of each containing 10 tablets of Voltaflam of Diclofenac (4860 tablets) with cash and other travel documents. Two samples were taken from each of 5 strips (50 tablets) of Alprazolam marked as S1 and S2, two samples each of 5 strips (50 tablets) were taken from Voltafacn marked as S3 and S4. Two samples of 5 ampules each of Sustanam injections were taken and marked as S5 and S6 and two samples of each 5 Typoid Polysachmaride IP injections were taken and marked as S7 and S8. The said PW-1 Mr.A.E.Ganeshan drew mahazar.
6.It is the further case of prosecution that, PW-1 had issued summons to the appellant (A1) to appear before him in the respondent's office on 12.02.2016. Accordingly, A1 had appeared and voluntarily gave statement which was marked as Ex.P5, in which he had admitted his guilt and had implicated A-2 Muruganandan as the one from whom he had purchased the tablets. A complaint was filed for the offences under Sections 8(c) read with Sections 22, 23, 27-A, 28 & 29 of the NDPS Act, 1985 (as amended) and punishable under https://www.mhc.tn.gov.in/judis Page No.7/28 Crl.A.Nos.11 & 125 of 2020 Section 22(b), 23, 27-A, 28 and 29 of the NDPS Act, 1985 (as amended). It is the further case of prosecution that based on A1's information, the respondent, along with Drug Inspector, went to the house of A2 Muruganandam at No.25, Ground Floor, Venkatesan Street, Chepauk, Chennai – 600 005, searched and seized some drugs under the Drugs and Cosmetics Act between 3.30 p.m. to 6.00 p.m. on 12.02.2016. A2 was served with summons under Ex.P17 to appear before the respondent. Accordingly, on his appearance, a statement under Section 67 of the NDPS Act under Ex.P.-18 was recorded and thereafter, he was arrested on the same day. Hence, the case.
7.Learned counsel for the appellant(A1) in Crl.A.No.125 of 2020 submitted that the prosecution had not established the fact that the tablets Alphrazolam tested by PW4 is a Narcotic Drugs or Psychotropic Substance. PW4, the Chemical Examiner neither in her report in Ex.P.38, nor in her evidence before the Court, had stated that the tablets found in the samples S1 are covered under NDPS Act, or not. The other items said to have been seized from the accused i.e., marked as S3, S5, S7 were not identified as to what was the nature of https://www.mhc.tn.gov.in/judis Page No.8/28 Crl.A.Nos.11 & 125 of 2020 the substances. The tablets seized were found in the form of strips and the tablets were manufactured by an authorized licensed manufacturer. The strips contained the details of the percentage of Alprazolam inserted in the tablets as 0.1mg i.e, 1/100th of milligrams. If 10450 tablets of Alprazolam is calculated with 0.1mg, the total weight of the Alprazolam seized comes around 100.40m.gms, which is less than 5 gms, which would fall under “small quantity.” Even assuming that if an individual tablet weight being calculated as 0.17 gms ie., 17m.gms, as per Ex.P.38, the calculation for 10450 tablets comes around 100.70 gms, which is just above the quantity of “in between quantity.”
8.Further, he would submit that Ex.P.38, is not clear as to whether the weight of the tablets mentioned in it, was weighed with the individual strip for one tablet. Therefore, benefit of doubt should have been extended in favour of the appellants. Further, he submitted that possession of Alprazolam in the form of raw or bulk alone would attract the offences under the NDPS Act, 1985, whereas, the Alprazolam was found mixed with the tablet for medicine use, and if it is found in possession without any valid prescription, it attracts an https://www.mhc.tn.gov.in/judis Page No.9/28 Crl.A.Nos.11 & 125 of 2020 offence only under the Drugs and Cosmetics Act. The learned Trial Judge failed to appreciate the evidence and erroneously convicted A1 for the charged offences. Learned counsel for A1 further submitted that Section 22(c) includes possession and export, and therefore, Section 28 would not get attracted.
9.Learned counsel appearing for the appellant (A2) in Crl.A.No.11 of 2020 submitted that the confession of A1 gives three facts as against A2 is which (i)name, (ii)address and (iii)the fact of purchasing medicine from A2 and he has not specifically stated any details about the date of purchase, place, time, quantity of drugs, source of money or any other details with regard to his brother, who is said to have asked A1 to buy the medicines for transport. The statement of A2 provides details as to which were not told by A1 and hence, there is no corroboration between the statement of A1 and A2 or any other evidence to connect A1 by A2. It was concluded that the medicines seized at the Airport were the same medicines sold to A1 by A2, inspite of the fact that the seized medicines were sealed in a box https://www.mhc.tn.gov.in/judis Page No.10/28 Crl.A.Nos.11 & 125 of 2020 and it was not shown to A2, which was admitted by PW1. The learned counsel forcibly stated that out of the Rs.2,70,000/- (Rupees Two Lakhs Seventy Thousand only) recovered from him, Rs.2,00,000/- (Rupees Two Lakhs only) was given by A1, but there is no whisper about the names of the person from whom he had received the remaining Rs.70,000/- (Rupees Seventy Thousand only). A2 never spoke about the batch number or the invoice number so as to verify or connect him with the seized contraband.
10.The learned counsel appearing for A2 further contended that the prosecution, in order to save the real accused from this case, had not conducted a fair investigation and a false case was foisted against A2 without any evidence to connect A1 with A2. Further, A2 was volunteered while he was questioned by the Drug Inspector, during the conduct of search in the premises of A2. The Drug Inspector was examined as PW6, and after conducting search at the office premises of A2, he had seized certain medicinal items, but did not produce them before the Court and also the first confessional statement alleged to have been made by A2 before PW6 was also not produced before the https://www.mhc.tn.gov.in/judis Page No.11/28 Crl.A.Nos.11 & 125 of 2020 Court to suppress the fact that the invoices pertaining to batch 3350 were not found from the invoices seized, and also to suppress the fact that A2 had never spoken about selling of any medicines to A1 in the first statement. The phone which was alleged to have been seized from A2, was not in his name but was in the name, of one Ganesh. The said Ganesh, in his statement, never spoke about A2 and admitted the genuineness of his photo, address and RC Book, but denied his signature. The non-examination of the said Ganesh is fatal to the case of the prosecution. The call records of A2 was marked by the Investigation Officer in violation of Section 65 of the Indian Evidence Act and there are no materials as against A2, except the confession statement and the statement of A1, without any details, as spoken to by A2 and all the vital witnesses have been suppressed by the prosecution. As far as A2 is concerned, except recovery of money and also the confession statement of A1, no other incriminating materials to connect A2 with A1. Therefore, the non-examination of the vital witnesses is fatal to the case of the prosecution and therefore, the Trial Court had failed to appreciate the evidence and simply convicted the appellants based on the confession statement and not on any other https://www.mhc.tn.gov.in/judis Page No.12/28 Crl.A.Nos.11 & 125 of 2020 corraborated materials. Therefore, the appeals may be allowed and the impugned judgment of the Trial Court is liable to be set aside and both the appellants are entitled for acquittal.
11.Learned Special Public Prosecutor appearing for the respondent submitted that, the complainant followed the procedure under Section 42 of the NDPS Act. Even though, Section 43 of the NDPS Act is only applicable, since the place of seizure in this case is Airport, which is a public place, the Investigation Officer also followed Section 50 of the NDPS Act and hence, the confession statement obtained from the appellants are admissible in evidence. The confession statements were not retracted by the appellants/ A1 & A2 at the appropriate stage. A1 and A2 have given confession statement implicating each other. Further, A2 has voluntarily handed over Rs.2,70,000/- (Rupees Two Laksh Seventy Thousand only) at the time of giving voluntary confession statement. The Call Detail Record particulars prove the fact that A2 contacted A1 and also a person at Malaysia during the relevant period. The non-examination of C.M.Prakash and Officer from Muthu Medicals, is not fatal to the case https://www.mhc.tn.gov.in/judis Page No.13/28 Crl.A.Nos.11 & 125 of 2020 of the prosecution. Further, the Chemical Analysis Report Ex.P.38 and the evidence of PW-4 clearly shows that the recovered drugs contained Alprazolam and the recovery Mahazar also clearly shows that each ZOLAX-1 tablet contains Alprazolam I.P. 1 mg, colour-Brilliant Blue and Excipients:QS. Therefore, total comes to 100.70 m.gms and it is within commercial quantity and therefore, the prosecution has proved the alleged recovery and the recovered items containing the Alprazolam, which falls under the Narcotic substance. The appellants did not have any valid licence or prescription for either possessing or selling the Alprazolam and even, assuming that it is in the form of tablets also, it falls under the “Narcotic substances”. Neither A1 nor A2 has produced any prescription or a valid licence or permission to possess the same. The tablets contain the Alprazolam, which falls under “Narcotic drugs”. Even as per the Table to the NDPS Act, the Alprazolam falls under “Narcotic Drugs.” Therefore, from the evidence of PW4 and Ex.P.38, report it is seen that the recovered items containing Alprazolam and even in the Schedule or table that the Alprazolam falls under the Narcotics drugs:-
Sl.N Name of the Other non- Chemical Smal Comme https://www.mhc.tn.gov.in/judis Page No.14/28 Crl.A.Nos.11 & 125 of 2020 o Narcotic Drug propriety Name l rcial and Psychotropic name Qua Quantit Substance ntity y (in (International (in gm./ non-proprietory gm.) kg.) name (INN)) 178 ALPRAZOLAM 8-chloro-1- 5 100gm ,ethyl-6-
phenyl-4H-s-
triazolo (4, 3-
a) (1,4)
benzodiazepin
e
12.Therefore, according to the learned Additional Public Prosecutor the prosecution has proved its case beyond reasonable doubt. The appellants, without having any valid prescription, were in possession and further, A1 has admitted the possession of the Alphrazolam and only defence is that, it is only a small quantity.
13.Heard the arguments advanced by either side and perused the materials available on record before this Court.
14.Admittedly, the specific case of the prosecution is that the Intelligence Officer, PW1 received information and hence, went to the https://www.mhc.tn.gov.in/judis Page No.15/28 Crl.A.Nos.11 & 125 of 2020 Anna International Airport also intercepted A1 and he recovered certain tablets and strips containing Alprazolam and it was sent for lab report, which also clearly shows that the accused were in possession of the contraband without any valid documents. While recording the confession statement, A1 had spoken about A2 from whom he purchased the contraband and subsequently, the house of A1 and shop of A2 were also searched and certain documents were recovered and hence the present case was registered.
15.After completing the formalities, the Investigatin Officer filed a report before the Special-Court. The Special-Court framed the charges as against the appellants as stated above. In order to substantiate the charges, as already said, 8 witnesses were examined as PW1 to PW8 75 documents were marked as Ex.P1 to Ex.P75 and 15 material objects were exhibited. Out of 8 witnesses, PW1 is the person who received the information regarding the possession of the contraband by the accused. Based on the information, he went to the Airport and A1 was found in possession of the Alprazolam. The evidence of PW1 is very clear, who had spoken about the proceedings https://www.mhc.tn.gov.in/judis Page No.16/28 Crl.A.Nos.11 & 125 of 2020 and recorded the voluntary confession statement from the accused and based on which, A1 was arrested and the sample tablets were also recovered. The sample tablets were sent to the Forensic Lab. PW4, who is a Chemical Examiner and who conducted the chemical examination on the samples received from the Special-Court has clearly spoken about the samples tested, which clearly proved that the tablets contained the Alprazolam which is the contraband falls under the NDPS Act and it is a prohibited item.
16.Admittedly, in this case, A1 has not denied the possession and also the recovery. Once his possession is admitted and recovery is also admitted, there is a legal presumption under Section 54 of the NDPS Act. A1 was in conscious possession and recovered item is also a prohibited item under the NDPS Act and it is for the accused persons to rebut the presumption in the manner known to law.
17.A careful reading of the evidence of PW1 shows that the entire procedures were followed while seizing the materials from A1 and he was arrested and the accused persons have also not questioned https://www.mhc.tn.gov.in/judis Page No.17/28 Crl.A.Nos.11 & 125 of 2020 the same or challenged any of the procedures. The only defence taken by A1 is that he was not in conscious possession. A1 has clearly stated that his friend asked to purchase, but, there is no valid documents to prove the same. Therefore, since the recovered tablets contained Alprazolam, falls under NDPS Act, it is clear that he has committed the offence.
18.PW2, is the Superintendent of the Narcotics Control Bureau who has spoken about the receipt of information/ Ex.P1 and also the report Ex.P25 and the contraband was sent to the godown of NCB under receipt Ex.P26. The evidence of PW1 is corroborated with the evidence of PW5 about the search and seizure from A1, who is the witness for the same. PW6, the Drug Inspector has spoken about the search conducted by her in the residence of A2 and the copy of the Mahazar and the enclosure prepared by her, was marked as Ex.P42. Therefore, the search and seizure from A1 and A2 is proved by the prosecution.
19.PW4 is the Assistant Chemical Examiner who has clearly https://www.mhc.tn.gov.in/judis Page No.18/28 Crl.A.Nos.11 & 125 of 2020 spoken that he received a sample and conducted the chemical examination and sent Ex.P.38 Report.
20.Therefore, from the evidence of PW1 to PW8, the Trial Court found the appellants guilty of the offences, as already stated. In this case, the recovery from the accused persons had been proved, and the same has not been challenged by the accused under Section 35 of the NDPS, Act, which reads as follows:
“Section 35:-Presumption of culpable mental state:- (1) In any prosectuion for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosectuion.
Explanation- In this section “culpable mental state” includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact.
(2)For the purpose of this Section, a fact is said https://www.mhc.tn.gov.in/judis Page No.19/28 Crl.A.Nos.11 & 125 of 2020 to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.”
21.Therefore, once the recovery is proved and the accused persons have not challenged the same, the law presumes the culpable mental state of the accused and the Court shall presume the existence of such mental state including culpable mental state, then it is for the accused to rebut the presumption under Section 54 in respect of the possession of the listed articles. Therefore, in this case, since the possession of the Alprazolam tablets from appellants and recovery from A1 was proved, then it is for the accused persons to rebut the presumption.
22.In this case, A1 has not rebutted the presumption in the manner known to law. As far as A2 is concerned, based on the confession statement made by A1, the shop of A2 was also subjected to search and money was recovered and he has also given the confession statement, in which A2 admitted that he sold the drugs to A1. https://www.mhc.tn.gov.in/judis Page No.20/28 Crl.A.Nos.11 & 125 of 2020
23.Though the learned counsel for the appellant contended that only the Durgs and Cosmetic Act will attract, as pointed out by the learned Public Prosecutor, once presence of Alprazolam falls under the Narcotic Drugs, which is prohibited, is proved and unless a person is having any valid or authorised documents, it is deemed that the possession is illegal and that person is liable to be convicted for a charged offence. So, in this case, there is no violation of any of the mandatory procedures for the seizure and recovery. The appellants have also given voluntary confession statement and the prosecution witness has also proved their case. The case is not only based on the confession statement, since recovery was proved, and possession of the drugs by A1 was not challenged and he also admitted that he was in possession of the tablets which contain Alprazolam. Therefore, it is proved that the accused was in conscious possession of the contraband. It is not the case of A1 that he was not in possession of the contraband and that the drugs have not been seized from him and therefore, the possession and recovery were admitted and he had also not produced any valid documents to possess the drugs. In this case, Section 54 will come into play since the possession and recovery were proved, which https://www.mhc.tn.gov.in/judis Page No.21/28 Crl.A.Nos.11 & 125 of 2020 also not challenged by the accused under the Section 35 of the NDPS Act. Therefore, it is for the appellants to rebut the statutory presumption and unless the contrary is proved, the law presumes that the appellants are in conscious possession of the contraband, which is an offence under the NDPS Act. From the evidence of PW1 and confession statement of A1, it is clear that A1 purchased the contraband from A2 by paying a sum of Rs.2,00,000/- (Rupees Two Lakhs only) and A1 attempted to export the same to Malaysia and they have not shown any authority, permit or licence or any other valid document to possess or export the drugs to Malaysia.
24.As far as A2 is concerned, he was found guilty not only from his voluntary confession statement, he has not given any explanation for the amount recovered from him. Further it is proved that A2 has booked his return ticket on 22.02.2016, which shows that his sole purpose of visit to Malaysia is illegal export of Narcotic Drugs and Psychotropic Substances. The conspiracy need not be an expressed one and it can be proved from the conduct of the parties. In this case, from the evidence of the prosecution witnesses, it is clearly proved that A1 https://www.mhc.tn.gov.in/judis Page No.22/28 Crl.A.Nos.11 & 125 of 2020 was intercepted by the NCB Officer PW1 at the Airport and the contraband was recovered from him, thereby, he was prevented from smuggling the same to Malaysia. Further, the prosecution evidence clearly shows that A1 and A2 conspired together to export the contraband to Malaysia, based on the order from one Muthu Mohammed through A2. In pursuance of the conspiracy, A2 sold 1450 Alprazolam tablets to A1 and A1 booked the tickets. Therefore, from the evidence of PW1, it is clear that A1 and A2 conspired together and attempted to smuggle the contraband to Malaysia. Further Ex.P32 CDR details clearly shows that the phone number stated by A1 and A2 tallies with each other as per their respective voluntary statement. As per CDR details, received calls and calls made during the relevant period. The repeated conversation between A1 and A2 to the said mobile phone have not been explained by them.
25.A2 is a Diploma holder in Pharmacy. Several medicines were recovered from his house. He has not produced any license from the concerned authority either for selling or storing, which creates a doubt and also the prosecution has proved the charge of conspiracy as https://www.mhc.tn.gov.in/judis Page No.23/28 Crl.A.Nos.11 & 125 of 2020 against A2. Even the voluntary statement of A2 is clear that one Muthu Mohammad, from Malaysia, placed order with A2.
26.From the material and documentary evidence, the prosecution has proved that A1 was in conscious possession of the contraband and he was about to transport the same to Malaysia, which was prevented by the NCB officials.
27.The confession statements of both A1 and A2, and from the other evidence, it is clear that the said medicine was purchased by A2 without any valid prescription. A2 is not supposed to have given drugs to A1 and as already stated, conspiracy need not be expressed in writing. The conspiracy can be proved from the conduct of the parties. From the evidence of prosecution witnesses and the conduct of A1 and A2, clearly shows that without any clear licence/ valid prescription or documents, A1 was in possession of the drugs, which were purchased from A2. A2 has not produced any valid licence or valid prescription or valid document to show that he has not sold the drugs to A1. https://www.mhc.tn.gov.in/judis Page No.24/28 Crl.A.Nos.11 & 125 of 2020
28.Therefore, under the above circumstances, the explanation offered by the Appellants / A1 and A2 is not acceptable. The presumption under Sections 35 and 54 of the NDPS Act has not rebutted as far as the A2 is concerned.
29.Therefore, in the above circumstances, this Court, as the final Court of fact finding, while re-appreciating the evidence, finds that both the appellants had committed the charged offences and the Trial Court had rightly appreciated and convicted both the appellants. There is no merit and the appeals are liable to be dismissed.
30.Accordingly, both the appeals are dismissed.
31.The conviction and sentence imposed on the appellants/ A1 and A2 are confirmed. The appellants/ A1 and A2 shall undergo the remaining period of sentence, if any. The period of imprisonment alredy undergone by the appeallants/ A1 and A2 shall be set off under Section 428 Cr.P.C. Since A2 is on interim bail, the trial Court is directed to secure his custody to undergo the remaining period of sentence, if any. Consequently, connected miscellaneous petition is https://www.mhc.tn.gov.in/judis Page No.25/28 Crl.A.Nos.11 & 125 of 2020 closed.
25.01.2023 Index: Yes/ No Speaking Order : Yes/ No Neutral Citation: Yes/ No gba To
1.The Intelligence Officer, Narcotics Control Bureau, Chennai Zonal Unit, Chennai.
(NCB F.No.48/1/01/2016-NCB-MDS)
2.The Special Public Prosecutor, NCB Cases (NDPS), High Court, Madras.
https://www.mhc.tn.gov.in/judis Page No.26/28 Crl.A.Nos.11 & 125 of 2020 P.VELMURUGAN,J.
gba Crl.A.Nos.125 & 11 of 2020 https://www.mhc.tn.gov.in/judis Page No.27/28 Crl.A.Nos.11 & 125 of 2020 25.01.2023 https://www.mhc.tn.gov.in/judis Page No.28/28