Madras High Court
R. Srinivasan, Mohammed Sabeer, ... vs Assistant Director, Directorate Of ... on 1 August, 2002
Equivalent citations: 2003(159)ELT83(MAD)
JUDGMENT Malai Subramanian, J.
1. All these five appeals arise out of a single Judgment delivered by the Special Judge (Essential Commodities Act & N.D.P.S. Act), Salem in C.C.No.24/94. C.A.No.773/97 has been filed by 10th accused; C.A.No.760/97 has been filed by 1st accused; C.A.No.772/97 has been filed by 2nd accused; C.A.No.773/97 has been filed by 3rd accused and C.A.No.774./97 has been filed by 6th and 7th accused. Originally, 13 accused were prosecuted. 12th and 13th accused were absconding and after the case against them was split up, the trial went on against the accused Nos: 1 to 11, out of whom, A.4, A.8, A.9 and A.11 were acquitted and A.5 was also discharged. A.1 to A.3 were convicted under Sec. 8(c) read with 29 read with 18 and 8(1) read with 29 read with 21 of Narcotic Drug and Psychotropic Substances Act and were sentenced to undergo R.I for 10 years and each to pay a fine of Rs.1,00,000/-( 2 counts), in default to suffer R.I for two years; A.6 was convicted for the offence punishable under Sec. 8(c) read with 29 read with 21 of the Act and was sentenced to undergo R.I for 2 years; A.7 was convicted for the offence under Sec. 8(c) read with 21 and was sentenced to undergo R.I for 10 years of the Act and to pay a fine of Rs.1,00,000/-, in default to suffer R.I for 2 years; A.10 was convicted for the offence under Sec. 25 of the Act and was sentenced to undergo R.I for 10 years and to pay a fine of Rs.1,00,000/-, in default to suffer R.I for 2 years. Since all these appeals arise out of a single judgment delivered by the trial court and accused Nos.1, 2, 3, 6, 7 and 10 have filed separate appeals, they are disposed of by way of a Common Judgment. The appellants in all these appeals will hereinafter be referred to as A.1, A.2, A.3, A.6, A.7 and A.10. The prosecution case is as follows:
2. The 1st accused is a resident of Khonti Village of Mandasore District, Madhya Pradash. A.2 is his brother. A.3 is a resident of Dindigul. A.6 is a resident of Gowdamapura Village of Ujjain District, Madhya Pradesh. A.7 is a resident of Thandamangala Village, Baswade District, Rajasthan. A.10 is a resident of S. Pudukottai village, Anna District. The accused 1 and 2 have the residence at Trichy also. The appellants along with other accused hatched a conspiracy to purchase, possess and export to Srilanka Narcotic Drugs and Psychtropic Substances. During the months of February and March 1993, they entered into a conspiracy to transport 66.1 kg of heroin and 361.61 kg of opium from outside the State of Tamil Nadu i.e., from Madhya Pradesh with intend to transport the same to Tuticorin for an eventual export to Srilanka. This information was received by P.W.1 Thiru. Jacob, then Superintendent of Police, Customs and Central Excise, Trichy. The same was received not from any other person but through the Intelligence of the Department itself. It is Ex.P.1. Immediately P.W.1 passed on this to information to P.W.25, Thiru Mohandas, Assistant Director of Customs and Central Excise, who was then the Superior Officer. Pursuant to the information, they went to National Hotel at Salem and noticed an Ambassador Car taken by two persons, who came out of the hotel . The car proceeded towards Omalur. P.W.1 and his parties also followed the car that stopped at "Dhaba" near Salem Engineering College, where a lorry was stationed. One of the occupants of the car got into the lorry. Thereafter, both the lorry and the car proceeded towards Salem - Namakkal High Road at about 10.00 a.m. After some time, both the vehicles were stopped in a village called Thalapallam on the main road. P.W.1 and his party went near the car bearing Registration No. TMP 9346 and enquired the occupants of the car and found that certain contrabands were going to be loaded in the car from the lorry bearing Registration No. GJ 17-T 6049. P.W.1 ascertained that A.5,A.6, A.7 and A.8 were in the lorry. The lorry was found loaded with slate pencil in packets. P.W.1 thereafter enquired the occupants of the car and found A.2 and A.3. He also ascertained that heroin was kept concealed amongst the slate pencil packets. Since there was no facility or safety to P.W.1 and others to search the vehicles, they took them to Customs Office, Salem under detention Mahazar - Ex.P.2.
3. Since the occupants of the lorry did not know Tamil language, the assistance of P.W.14 - Inspector of Customs, who knew Hindi language spoken to by A.5,A.6 and A.7, was taken by P.W.1. Thereafter, Mahazar - Ex.P.8 was prepared in the presence of two witnesses - Jayakanthan and Sankar for seizure of 61.1 kg of heroin from the lorry between 9.00 p.m and 11.30 p.m. On 15.5.93, copies of the mahazar were handed over to all the accused. The contraband was kept in four gunny bags concealed amongst the Slate pencil packets. The gunny bags are M.Os.1 to 4. Each gunny bag was then opened and heroin was found in polythene bags. There were totally 67 polythene bags in four gunny bags containing 66.1 kg heroin. The slate pencil packets containing 1750 slate pencils were also seized under Exs.P.3 to P.7. Sample was also taken from the heroin for chemical analysis. The value of the heroin seized is about Rs.1,32,20,000/-. The accused, 2,3, 5, 6 and 7 also signed in the mahazar besides the witnesses. Thereafter, P.W.25 was informed. A report under Sec. 57 of the Act was also sent by P.W.1. After the sample was taken, the remaining 65.910 kg of heroin were packed in 4 boxes. Statements were recorded from the accused with the help of Mr.Ramachandramurthy, another Inspector of Customs from A.6, A.7 in Hindi and was translated in English also. Ex.P.12 is the Hindi version of the statement of A.7 and his transaction is Ex.P.13. The statement of A.9 is Ex.P.16 and the English translation is Ex.P.17. Statements were recorded on 16.5.93. The statement of 6th accused is Ex.P.18 and its English translation is Ex.P.19. Then the 2nd accused was enquired and his statement was recorded in Ex.P.20 and the translated version is Ex.P.21. Thereafter, on 16.5.93, A.2, A.3, A.6, A.7, A.8 and A.9 were arrested. The sample heroin was sent through Ex.P.28 letter for autopsy. Analyst Report is Ex.P.29, which reveals that the Substance was only heroin. Ex.P.30 Chemical report was also received. The vehicle were also seized. The slate pencils were handed over to the parties concerned as per the Order of this Court after investigation was taken up P.W.25.
4. P.W.25 taking up further investigation, ascertained the movements of the 1st accused, directed P.W.11 to search his house and on his search, some articles and Rs.4,50,000/- were seized. Thereafter the house of A.4 was also searched. On 16.5.93, the 1st accused came to the Office of P.W.25 at Trichy along with one Julian Samuel, the Officer who was working under P.W.25 and thereafter A.1 was taken to Salem and they reached Salem at about 7.00 p.m. On 17.5.93 the house of A.10 at S. Pudukottai was searched and 7 bags of Opium weighing 361.61 kgs was seized from his house. After interrogating A.2, A.3, A.6, A.7, A.8 and A.9, they were arrested on 17.5.93 and forwarded for remand. Statements were recorded from A.1, A.5, A.10 and they were forwarded for remand on 18.5.93. After completing investigation, P.W.25 lodged the complaint Ex.P.112.
5.After the evidence of prosecution was over, the accused were questioned under Sec. 313 Cr.P.C to enable them to explain the incriminating circumstances appearing in evidence against them. The accused denied their participation in the offence.
6. Three witnesses were examined on their side. Exs.D.1 to D.7 were marked. D.W.1 is a doctor attached to the Government Hospital, Salem. He spoke about the treatment given to the 11th accused by another doctor Sitharaj and the case sheets were marked. D.W.2 is another doctor working as Assistant Professor, Government Medical College cum Hospital, Salem. He gave evidence about treatment given to the 11th accused as impatient from 1.6.93 to 12.6.93 and certain medical records were marked. D.W.3 is yet another doctor working at that time in the Central Prison, Vellore. He would say that on 29.5.93 at about 10.30 a.m, he examined 11th accused and found certain injuries. He issued Ex.D.4 - Entry of injuries.
7. Against the convicted appellants, the prosecution case is that on the instructions and arrangements made by the 1st accused and pursuant to the conspiracy among the appellants, 361.6 kgs of opium were transported from Mandasore to Salem and the same was kept by the 3rd accused in the house of 10th accused and pursuant to the very same conspiracy, a quantity of 66.1 kg of heroin was transported by A.6 and A.7 along with two other acquitted accused to Salem, where the same was seized. The further case of the prosecution is that the above said contrabands were transported into the State of Tamil Nadu with an intend to further transport it to Tuticorin with an eventual export to Srilanka.
8. P.W.1 - the Senior Intelligence Officer, Directorate of Revenue Intelligence, Trichy gathered the information as per Ex.P.1 and thereafter he made a raid resulting in the seizure of 66.1 kg of heroin from a lorry. He along with his party proceeded to Salem Omalur Road and after noticing an Ambassador Car bearing Registration No. TMP 9346 stationed in front of National Hotel, he saw 2nd and 3rd accused getting into the car and driving towards Salem Engineering College, where the lorry GJ 17-D-6049 was seen. Thereafter, one of them went to the lorry and the lorry as well as the car went towards Namakkal. Thereafter, both vehicles were stopped in the main road at a village Thalapallam. P.W.1 and his party intercepted them and ascertained from A.2, A.3, A.6 and A.7 that heroin was transported in the lorry and it has to be loaded in the car to be taken to Tuticorin. Since there were no facilities nor was there any safety, P.W.1 and his party took both the vehicles to the Customs Office at Salem and thereafter, the contraband was seized and the statements were also recorded from A.2, A.3, A.6 and A.7. While recording statement from A.3 the fact that 361.61 kg of opium was kept concealed in the house of 10th accused came to light and P.W.3 - another Intelligence Officer and his party went there and seized the same also.
9. The learned Senior Counsel Mr. B. Kumar arguing for A.1 and A.3 would contend that Sec. 42(2) of N.D.P.S. Act was violated and therefore, on that score alone all the appellants are entitled to an acquittal. According to him, under Sec. 42, the officer, who searched and seized the contraband did so, on information received by him as per Ex.P.1, but the information has been not been forwarded to his superior officer as contemplated under Sec.42(2) of the Act and therefore, the entire proceedings are vitiated. He would further argue that only after bail application of A.3 came up for hearing , while this point was raised and accepted by this Court which granted bail to the 3rd accused, the Department tried to make up the flaw of not recording the information and thereafter, Ex.P.1 was created. In support of his contention, he also relied on a reported judgment of this court by which A.3 was granted bail. The learned Senior Counsel would further contend that the said information has not been forwarded to his immediate superior officer as contemplated by Sec.42(2) of the Act.
10. As against these contentions, the learned counsel for the complainant would submit that P.W.1 has not acted under Sec.42 of the Act, but he did so under Sec.41 of the Act, he, being the Gazetted Officer of the department and therefore, he was under no obligation to comply with the requirements of Sec.42(2) of the Act. He would also contend that Ex.P.1 is not an information received from any other person, but it is a gist of intelligence gathered by the department itself and therefore, it is not required to be reduced into writing. He would further contend that this Court in C.A.No.898 of 1998 disposed of on 12.6.2001 held that Sec.42 of the Act will not apply to the facts of the case where the officer conducting the search himself is a gazetted officer.
11. According to P.W.11, Ex.P.1 is the gist of intelligence received by him and this gist of intelligence was submitted to this Court while considering bail to A.3. The ruling of this Court granting bail to 3rd accused finds reported in M. LOGANATHAN VS DIRECTORATE OF REVENUE INTELLIGENCE (1994 (73) ELT 281 (Mad)). The very same information finds mentioned in Para 6 of the ruling. The learned Judge would hold that the contents of this document though has not been controverted, clearly fortifies the conclusion that on information the respondent authorities had a total surveillance on the Car in question with definite information about the transporting of the narcotic drugs under the N.D.P.S. Act, with the concerned vehicle number and the relevant persons by specified names previously. Therefore, the learned Judge held that it is a definite information, a copy of which has to be necessarily sent to the immediate official superior to P.W.1. Holding that the mandatory provisions of 42(2) of the N.D.P.S. Act was violated, the learned Judge granted bail to the 3rd accused. The learned senior counsel arguing for the 1st and 3rd accused would also contend that the ruling given by this Court that the mandatory provision in Sec.42(2) of the Act has not been complied with operates as resjudicata. I am unable to agree with the learned counsel that the holding of this Court while considering the bail application that Sec.42(2) of the Act has not been complied with can operate as resjudicata. This Court while considering the bail application has passed an order of granting bail in a summary way and the guilt or otherwise of the accused concerned has not been decided there. To quote, a ruling of the Apex Court reported in S.SETHURATHINAM PILLAI VS BARBARA (1972 SCC (Crl) 171) " The order passed in an application filed under Sec.488, Cr.P.Code is summary order which does not finally determine the rights and obligations of the parties thereto. It is an order made in a proceeding under a provision enacted with a view to provide a summary remedy for providing maintenance, and for preventing vagrancy. The decision of the Criminal court that there was a marriage between Barbara and Sethurathinam and that it was a valid marriage will not operate as decisive in any civil proceedings between the parties for those questions"
12. Even otherwise as contended by the learned counsel for the respondent, P.W.1 is admittedly a gazetted officer of the Directorate of Revenue Intelligence. Sec.41(2) empowers a gazetted officer of the Department mentioned therein, to authorise any such officer subordinate to him but superior in rank to a peon, sepoy or a constable to him, to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest a person or search a building, conveyance or place. Therefor, Sec.41(2) consists of two parts. The first one is that any gazetted officer is empowered to authorise any officer subordinate to him but superior in rank to a peon, sepoy, or a constable to do the above acts and the other is that he himself can arrest a person or search a building, conveyance or place. P.W.1, being a gazetted officer had himself proceeded to search the lorry and thereafter, he had seized the contraband and also arrested the concerned accused. The distinction between Sec.41(2) and Sec.42 is that insofar as the search of a conveyance or the arrest of a person is concerned, the gazetted officer himself can do it or he can authorise any officer subordinate to him not below the rank of peon, sepoy or a constable; but under Se.42, any such officer means an officer superior in rank to peon, sepoy, or a constable contemplated under Sec.41(2) and not a gazetted officer. Therefore, the requirement of writing down the information received by the officer concerned and the duty cast on such officer to send a copy thereof to his immediate superior officer would apply only in case an officer of the rank specified therein has been authorised by the gazetted officer makes a search and effects arrest and not when the gazetted officer himself proceeds to arrest a person or search a building, conveyance or place.
13. The learned senior counsel Mr.B. Kumar contends that Sec. 41(3) of the Act says that the officer who authorised the arrest or search or the officer who is so authorised under Sub section 2 shall have all the powers of an officer acting under Sec.42 and therefore, he is duty bound to reduce the information in writing and send a copy thereof to his immediate official superior. What has been said by Sub Section 3 of Sec.41 of the Act is that a gazetted officer who is so authorised viz., an officer not below the rank of peon, sepoy or a constable shall have all the powers of an officer acting under Sec.42. Those powers can be exercised by the officers but Sub Sec.2 to Sec.42 does not contemplate exercise of any power but it only speaks about the duty cast upon the officer concerned to send a copy of information to his immediate official superior. As rightly pointed out by the learned counsel Mr. P.N. Prakash appearing for the Department, if the gazetted officer himself proceeds to make a search and effect an arrest, he is not expected to send a copy of information to his immediate official superior and he is also not expected to take down in writing any information received by him. Moreover, the gist of intelligence has been with the department even while bail was considered for A.3, by this Court in April 1994. Therefore, it cannot be said that the said information came to exist belatedly. Further a brother Judge of this Court Mr. Justice N. DHINAKAR in C.A.No.898/98 has given a finding that if the Searching Officer is the Gazetted Officer, only Sec.41(2) of the Act gets attracted. I am in full agreement with the finding of the learned Judge and therefore, there is no question of considering any violation of Sec.42(2) of the Act in this case. Since on facts it has been decided that Sec.41 of the Act alone applies in this case and Sec.42(2) is not attracted, the ruling rendered under Sec.42(2) relied on by the appellants have not been referred to in this case.
14. On facts the culpability of the 1st accused has been proved by his own statement Ex.P.64 wherein he has admitted that he started his opium business with the help of 3rd accused and two absconding accused and there was a conspiracy and pursuant to the conspiracy, he arranged for transport of heroin and opium. This statement of 1st accused finds corroborated by the seizure of the contrabands. The learned senior counsel Mr. B. Kumar appearing for the 1st accused contends that the 1st accused was taken into custody on 16.5.93 while he was produced for remand after two days i.e., on 18.5.93 evening. Arrest was shown at 22.30 hours on 17.5.93. Within 24 hours the 1st accused was produced before the Court for remand. Therefore, there was no delay of more than 24 hours.
15. According to the learned counsel Mr. P.N. Prakash appearing for the department, 1st accused was interrogated during that period. Therefore, merely because the person was taken by the authorities concerned for interrogation, time will not run from that stage and on that score the statement recorded from the accused cannot become inadmissible. It is also the contention of Mr. B. Kumar that in as much as the scribe viz., Ramachandramurthy who was said to have written the statement of Ex.A.1, has not been examined, the said statement has become inadmissible. I am unable to agree with this contention because Mr. Ramachandramurthy is not the author of the statement, but the 1st accused is the author of the statement. The statement was recorded in the language of the 1st accused by Mr. Ramachandramurthy , an Officer of the Department and the same has been translated in English. Therefore, I hold that the statement is admissible in evidence and it finds corroboration from the very seizure of the contrabands and hence I see no reason to interfere with the conviction of the 1st accused.
16. The learned counsel Mr. A.A. Selvam, who argued on behalf of 2nd accused contends that P.W.1 has stated that he saw the 2nd accused coming out of the lodge and getting into the car at 10.00 a.m, but at the same time he himself would say that he followed the car and the lorry and intercepted the same at 10.00 a.m itself and in view of this improbability on the time factor, the 2nd accused should be given the benefit and he should be acquitted. Exs.P.67 and P.68, the entries in the arrival and the departure register of the National Hotel, Salem and the evidence of P.W.5 would show that the 2nd accused took room there at 1.30 a.m on 15.5.93 and vacated the same at 10.00 a.m. After all to go to Thalapallam from National Hotel, it may not take much time. Merely because a departure time was written as 10.00 a.m in the lodge register, I cannot accurately say that exactly at 10.00 a.m the 2nd accused checked out the lodge. In Salem itself the lorry was found near Engineering College and immediately the lorry and the car started followed by P.W.1 and his party. Therefore, it is too trivial a point on which benefit can accrue to the 2nd accused.
17. The learned counsel further contends that though P.W.1 and his party followed the car in which 2nd and 3rd accused travelled the moment they cited the lorry, they have not intercepted the lorry and allowed the lorry and car to go still farther and this act on the part of the officer raises a doubt in the prosecution case. When the officer followed the car at a distance even before he went near the lorry, one of the accused got down from the car, went to the lorry and both the vehicles have started. Therefore, they had to follow the vehicles and after the vehicles stopped for loading the contrabands in the car, the vehicles have been intercepted. Therefore, on this score, I am unable to dislodge the conviction of A.2 and A.3.
18. The learned Senior Counsel Mr. V. Gopinath appearing for 6th and 7th accused would contend that insofar as 7th accused is concerned, he is a driver and we cannot impute knowledge of the contents of the bags to the 7th accused and therefor, A.7 should be given the benefit of doubt. He relies of Exs.P.12 and P.13. Exs.P.12 and P.13 are the statements of A.7 in Hindi and English respectively,wherein he has stated that he was transporting slate pencils from Mandasore, Madhya Pradesh to Coimbatore and on the way near at 'Dhaba', after he covered 30 to 35 kms., a request came from one man to take the bags for which Rs.2,000/- was offered. When the 7th accused asked that person the latter informed him that nothing was illegal and his man would also accompany. Therefore, he took the bags along with the slate pencil packets. A.6 was also accompanying. Insofar as 6th accused is concerned, he is a person, who had knowledge about the contraband, but insofar as 7th accused is concerned, we cannot impute knowledge to him; after all he is a carrier and he agreed to transport the bags for consideration without knowing the contents. Therefore, I am inclined to give the benefit of doubt to the 7th accused. But insofar as 6th accused is concerned, he has admitted in his statement Ex.P.18 which was duly translated as Ex.P.19 that there was a conspiracy and pursuant to the conspiracy heroin was taken and transported in the lorry driver by 7th accused and thereafter seized. Therefore, the conviction of 6th accused has to be upheld.
19. Insofar as 10th accused is concerned, the learned Counsel Mr. R. Regupathy contends that it cannot be said that 10th accused was keeping the bags containing opium knowing the contents. According to him, even in Ex.P.54 which is the statement of 3rd accused, he has stated that A.10 was known to him from his childhood and therefore, he placed the bags in his house promising him to pay Rs.2,000/-. A.3's statement reveals that the village of 10th accused is at a distance of 1 km from the village of 3rd accused. 7 bags containing opium were kept in safe custody in the house of 10th accused by 3rd accused. Insofar as 3rd accused is concerned, there is no dispute that he had knowledge about the contents and he was having conscious possession before it was kept in the house of 10th accused and he also admits in his statement about his involvement, but insofar as 10th accused is concerned, I am unable to hold that he kept the bags knowing the contents. The statement recorded from A.10, Ex.P.61 reveals that on 5.5.93, his friend came in a car and told him to keep 7 bags in his house for some time and within a week he could come and take them back. He would further say that in view of his friendship with A.3, he accepted and the bags were kept in his house, but he did not know that the bags contained any Narcotic Drugs and Psychotropic substances. He would also say that in case he would know that they were all contrabands, he would not have allowed his friend Srinivasan to keep them in his house and unfortunately due to his friendship with A.3 he was duped. The statement recorded from A.10 reveals the innocence of A.10 and it is very much clear that he got into the trouble only because of 3rd accused. Therefore, I am inclined to give the benefit of doubt to A.10 also.
20. In the result, the conviction and sentence passed on A.1, A.2, A.3 and A.6 are confirmed and their appeals stand dismissed. Insofar as A.7 and A.10 are concerned, benefit of doubt is given to them; their appeals are allowed, their conviction and sentence are set aside and they are acquitted. The fine amount, paid if any by them shall be ordered to be refunded to them. A.7 and A.10 viz., Samraj and R. Srinivasan are directed to be released from Central Prison, Trichy forthwith.