Madras High Court
M.Rajeswari vs State By on 24 August, 2018
Author: G.Jayachandran
Bench: G.Jayachandran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24.08.2018
RESERVED ON : 14.08.2018
DELIVERED ON : 24.08.2018
CORAM
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Crl.A(MD)No.256 of 2007
S.P.Mayandi (died)
S/o.Periyakaruppa Thevar.
M.Rajeswari,
W/o.S.P.Mayandi
[Cause title is amended and the
appellant is permitted to continue
appeal, vide order, dated 23.03.2011
made in M.P(MD)No.1 of 2011] : Appellant
Vs.
State by
The Inspector of Police,
SPE/CBI/ACB/Chennai.
FIR.R.C.I(A)/2004 : Respondent/
Complainant
PRAYER: Criminal Appeal is filed under Section 374(2) of the Code of Criminal
Procedure, praying to call for the records relating to the Judgment passed in
C.C.No.18 of 2004, dated 25.04.2007 by the learned Special Judge for CBI
Cases, Madurai and set aside the same.
!For Appellant : Mr.R.Venkateswaran
^For Respondent : Mr.A.Nagendran,
Special Public Prosecutor for CBI Cases.
:JUDGMENT
The conviction and sentence dated 25.04.2007 passed in C.C.No.18 of 2004 by the learned Special Judge for CBI Cases, Madurai are being challenged in the present Criminal Appeal.
2.The accused, S.P.Mayandi, former Superintendent at the office of the Assistant Commissioner, Customs Department, Tuticorin, was found guilty for demand and acceptance of Rs.10,000/- as illegal gratification other than legal remuneration from K.L.A.Murugappan (P.W.2) to facilitate one Rama Thiyagaraja Kumar, nephew of K.L.A.Murugappan, to get bail in a case registered against him under the Narcotic Drugs and Psychotropic Substances Act. Aggrieved by the conviction and sentence, S.P.Mayandi, has preferred the appeal. Since, he expired pending appeal, his wife has got herself impleaded as appellant and had pursued the appeal.
3.Brief facts leading to the filing of this appeal are as follows:
(i)Thiru.K.L.A.Murugappan (P.W.2), Customs Clearing Agent, had lodged a complaint to the Inspector of Police, CBI, Tuticorin, on 09.01.2004, alleging that he is the properietor of M/s.Vettri Impex, having offices at Chennai and Tuticorin. His brother-in-law, T.Ramasamy, is taking care of his Tuticorin branch office. Rama Thiyagaraja Kumar, son of Ramasamy was assisting Ramasamy in running the Tuticorin branch. 400 bags of salt was exported by M/s.A.Rajedran and Company through M/s.Vettri Impex. The declaration was signed by him. The packing list and invoice were signed by Ramasamy along with the exporter. The said goods while on transit to the Old Port, Tuticorin in two lorries, was intercepted by the Customs Department on a specific information that heroin is clandestinely transported by concealing the same in the salt bags. On 30.10.2004, the two lorries carrying 400 salt bags were taken to nearby salt grinding mill and checked. It was found by the Customs Department Team, six packets of heroin, totally weighing about 7.210 Kilograms, kept concealed in a salt pack with double gunny package.
S.P.Mayandi, the then Superintendent of Customs Department, who had lead the team had arrested 6 persons including Rama Thiyagaraja Kumar, son of Ramasamy and has taken up the investigation.
(ii)According to P.W.2, bail petition filed by Rama Thiyagaraja Kumar was dismissed by the Trial Court. He was summoned by the Customs Department to give statement and he appeared before the Investigating Officer and gave his statement on 23.11.2004. Thereafter, the accused called him over phone on 06.01.2004. Since, he was not in his office, the message was conveyed to him by his staff. On 07.01.2004, he called back S.P.Mayandi. At that time, S.P.Mayandi, asked him to come to Tuticorin immediately for a discussion regarding the case registered under the Narcotic Drugs and Psychotropic Substances Act, against Rama Thiyagaraja Kumar and others. Accordingly, he met S.P.Mayandi on 07.01.2004 at his residence. S.P.Mayandi demanded Rs.30,000/- as bribe to release Rama Thiyagaraja Kumar on bail and if bribe is not paid,Rama Thiyagaraja Kumar has to suffer in jail till his lifetime.
(iii)P.W.2, K.L.A.Murugappan was not inclined to give bribe. Hence, he contacted the Superintendent of Police, C.B.I. over phone and reported about the illegal demand made by S.P.Mayandi. On the instructions of Superintendent of Police, C.B.I., he met one Sridaran, Inspector of Police, C.B.I. on 09.01.2004 and gave a written complaint about the illegal demand of Rs.30,000/- made by S.P.Mayandi to concede bail for Rama Thiyagaraja Kumar. Based on the written complaint (Ex.P.3), Thiru.Sridaran (P.W.5), the trap laying officer, has taken up the case for investigation and after making preliminary enquiry about the credential of S.P.Mayandi, had forwarded the complaint to the Superintendent of Police, C.B.I. and after getting his approval proceeded to lay trap. He arranged two official witnesses from United India Insurance Company, to witness the trap. Phenolphthalein and Sodium Carbonate test has been demonstrated in the presence of the witnesses. Since, K.L.A.Murugappan had only Rs.10,000/-, the same was sprinkled with phenolphthalein and entrusted to K.L.A.Murugappan with instruction that he should only handle the money till S.P.Mayandi demands it.
(iv)On 09.01.2004, at about 09.30 a.m., K.L.A.Murugappan has gone to the residence of S.P.Mayandi. He was also given a micro cassette to record the conversation between him and S.P.Mayandi. S.P.Mayandi has refused to receive Rs.10,000/- and demanded the entire bribe amount of Rs.30,000/- to be paid at one time. Later, accepted the part payment of bribe Rs.10,000/- and kept on the chair nearby. K.L.A.Murugappan left the residence of S.P.Mayandi and gave a pre arranged signal to the trap team by whipping his face. On receipt of the pre arranged signal, the trap team along with the witnesses, had entered the house of S.P.Mayandi. They saw S.P.Mayandi watching television and after conducting phenolphthalein test on both his hands and collected the solution. Found 100 rupees bundle on a chair near him. Recovered the same. When sodium carbonate solution was sprinked on the chair, the colour of the solution turned into pink. The solution was collected for analysis.
(v)Being prima facie satisfied that Rs.10,000/- found on the chair was the illegal gratification received by S.P.Mayandi, as a motive forbear from objecting the bail application of Rama Thiyagaraja Kumar, he was arrested. During the course of investigation, it has been found that immediately after the arrest of Rama Thiyagaraja Kumar on 30.10.2004, the statement of the witness did not reveal his involvement or knowledge in the illicit trafficking of heroin seized by the Customs Department, lead by the accused S.P.Mayandi. Therefore, based on the report given by the Assistant Commissioner, the Commissioner of Customs Department at Trichy had informed the accused not to object the bail of Rama Thiyagaraja Kumar, since there is no material against him to prosecute. Despite receiving the said communication, the accused had filed petition for extension of remand on four occasions and thereafter contacted the de facto complainant over phone on 06.01.2004 and 07.01.2004, told him to meet in person. When the de facto complainant met the accused in prison on 08.01.2004, he had demanded illegal gratification. On 09.01.2004 received Rs.10,000/- as gratification, other than legal remuneration. Later, in the case involving seizure of 7 kilogram of heroin, final report was filed only against three accused. Rama Thiyagaraja Kumar was not prosecuted for want of evidence.
4.Based on the materials collected during the course of investigation, final report was filed and charge under Sections 7 and 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988 was framed against the accused.
5.To prove the charges, the prosecution has examined 9 witnesses and 26 exhibits and 5 material objects were marked. On the side of the defence, 13 exhibits were marked to prove his innocence.
6.The Trial Court after appreciating the evidence, held the accused guilty. Aggrieved by the said judgment and conviction, the appeal under consideration, is filed.
7.The learned counsel appearing for the appellant would submit that the Trial Court failed to appreciate the defence version in proper perspective, which is more cogent and convincing than the version of the prosecution. P.W.1 is not the competent person to accord sanction to prosecute the appellant. There was animosity between P.W.1 and the appellant, which could be seen from Ex.P.20 and Ex.D.3. To save the culprits in the case booked by the appellant under the Narcotic Drugs and Psychotropic Substances Act, the prosecuting agency has bent upon to prepare documents and to fix the appellant herein, who had acted bona-fidely and honestly in having booked the culprits involved in trafficking of narcotic drug. The prosecution has conveniently omitted to examine vital witnesses like, the Superintendent of Police, to whom the de facto complainant has lodged the complaint and the staff of the lodge, where the de facto complainant alleged to have been stayed at Tuticorin, where the investigating officer met him and received the complaint. The narration of the pre-trap proceedings, on the face of it, appears to be very artificial and unbelievable. The alleged conversation between the de facto complainant (P.W.2) and the accused during the trap proceedings on 09.01.2004, though alleged to have been recorded in a micro cassette, the transcription found in the micro cassette, had not seen the light of the day. Though, the prosecution has chosen to mark the micro cassette as M.O.5, neither the trap laying officer nor the officer, who was laid the final report nor the officer, who accorded sanction has cared to find out what was recorded in the micro cassette and whether really there was any conversation of demand and acceptance of bribe, found in the said conversation as alleged by the de facto complainant. The communication of the Commissioner of Customs giving clean chit to Rama Thiyagaraja Kumar, while the investigation by the appellant herein was under way itself borne out of some synical design between custom officials and the culprits involved in drug trafficking. The alleged tainted money was admittedly, not recovered from the possession of the appellant. The money recovered from the chair was clandestinely planted by P.W.2. The contradiction regarding the receipt of the tainted money by the appellant has not given due consideration by the Trial Court.
8.The learned counsel appearing for the appellant would also submit that Rama Thiyagaraja Kumar, accused in the offence under the Narcotic Drugs and Psychotropic Substances Act case, never filed bail petition after his bail petition got dismissed in the month of November, 2003. Thereafter, no necessity to oppose or concede bail arose. Since the investigation was pending, the appellant had filed remand extension application through the Public Prosecutor. From the evidence, it is clear that even after the trap and change of investigation officer, the bail petition moved by Rama Thiyagaraja Kumar was dismissed by the Trial Court and he got bail from High Court. Due to the unnecessary interference by the higher officials of the Customs Department, the investigation in the drug trafficking case got truncated, leading to filing an incomplete final report deleting the names of the real accused and ultimately the other three other accused were acquitted on the ground of improper investigation.
9.Per contra, the learned Special Public Prosecutor for CBI cases would submit that the appellant herein while serving as Superintendent of Police of Customs, based on the specific information that heroin is smuggled to Srilanka by clandestinely concealed in salt bags, had intercepted two lorries, which were transporting 400 bags of salt. The salt bags were opened and checked. Six packets of heroin were found in double gunny bags for easy identification from rest of the bags.. While proceeding with the investigation, Thiru.Rama Thiyagaraja Kumar in his statement recorded under Section 67 of Narcotic Drugs and Psychotropic Substances Act, has categorically denied his knowledge about the concealment of heroin in the salt bags. Even then, the appellant herein had arrested him and also opposed the bail petition. The bail petition was dismissed by the Trial Court on 14.11.2003 [Ex.P.19]. During the personal briefing with the Assistant Commissioners by the Commissioner on 14.11.2003, the Commissioner instructed that the Department was not having any objection to the bail petition of the two drivers and Clerk of CHA [Rama Thiyagaraja Kumar] and others, if any. This instruction was conveyed to the Assistant Commissioner of Customs, Tuticorin, vide FAX message dated 17.11.2003. The appellant was informed about the instruction and he had acknowledged this by putting his initial (Ex.P.21). Reading out the contents of Ex.P.20, which was received by the accused on the next day, learned Special Public Prosecutor would submit that despite specific instruction from the Assistant Commissioner, Trichy, conveying the instruction of the Commissioner not to oppose the bail petition of Rama Thiyagaraja Kumar, the appellant herein has filed remand extension applications on four occasions, namely, on 22.11.2003, 28.11.2003, 15.12.2003 and 03.01.2004, which were marked as Ex.P.22, Ex.P.23, Ex.P.24 and Ex.P.25. Thus, defying the instruction of the Commissioner of Customs Department, the appellant herein deliberately prevented Rama Thiyagaraja Kumar from getting bail. Thereafter, on 06.01.2004, called the de facto complainant K.L.A.Murugappan, to discuss about the case. When P.W.2, K.L.A.Murugappan called back, on 07.01.2004, the appellant has specifically told him to come and meet him in person at his residence at Tuticorin. On the next day, when the de facto complainant, met the appellant. He has demanded Rs.30,000/- as bribe to give consent for bail. Shocked by the illegal demand, P.W.2 K.L.A.Murugappan, has lodged a complaint, Ex.P.3, wherein he has categorically stated how, when and why the appellant is demanding illegal gratification. In the complaint itself, P.W.2 had specifically stated that when he met S.P.Mayandi, he told him that unless he pays bribe of Rs.30,000/-, his nephew Ram Thiyagaraja Kumar will be in trouble. He is the sole deciding authority and if he is not paid Rs.30,000/-, Rama Thiyagaraja Kumar shall spend rest of his life in the prison. Since the appellant has told the de facto complainant to come to his residence on 09.01.2004 at 10.30 a.m. to pay the bribe money and come alone to his house, P.W.2 was sent alone without shadow witnesses. To record the conversation between him and the appellant, a micro cassette was given to P.W.2 with instruction that he should switch on the micro cassette before he enters the residence of the appellant. The micro cassette is marked as M.O.5. Admittedly, transcription of the micro cassette has not been reduced into writing and not produced before the Court. However, if the appellant wants to rebut the presumption, he might have requested the Court to play the cassette and could have rebutted the presumption casted upon him under Section 20 of Prevention of Corruption Act. Having failed to do so, the Trial Court has rightly pointed out the silence of the accused and has presumed against him. While the prosecution has strongly proved the demand and acceptance of bribe money Rs.10,000/- by the appellant and recovery of the same from the possession of the appellant, it is the burden of the accused to rebut the presumption under Section 20 of Prevention of Corruption Act. He had not given any explanation for the possession of the tainted money. Earlier, he had submitted that the money was planted by P.W.2, when he visited his house. Later, while questioning the incriminating evidence against him, he has taken a different stand that he was taken to a lodge and the mahazar and other documents were prepared in the lodge. Though these two explanations are mutually destruction to each other, for neither of these two explanations, there is prima facie material to probabilise. Therefore, the learned Special Public Prosecutor for CBI Cases would contend that the appeal has to be dismissed as devoid of merits.
10.Point for consideration:
?Whether the explanation adduced by the defence falls within the scope of preponderance of probability to shuttle the prosecution case??
11.The admitted fact in this case is that the appellant herein as Superintendent of Customs was the investigation officer in OR No.03/2003-CD, TTN, which relates to seizure of 7.132 Kg of heroin concealed in salt bags. It is also an admitted fact that out of 400 salt bags, in 6 bags heroin packets were concealed was cleared for export by M/s.Vettri Impex [CHA]. The de facto complainant is the proprietor of CHA. Rama Thiyagaraja Kumar is the son of T.Ramasamy, who is the brother-in-law of the de facto complainant. The said Rama Thiyagaraja Kumar was the signatory to the packing list. The exporter Dhanasekaran, proprietor of M/s.Rajendran and Company is also co- signatory to the bagging list. The importer Mr.Pushbaraj was apprehended at Chennai Airport immediately after the seizure of the contraband at Tuticorin. Search and seizure of the contraband tookplace on 30.10.2003. On the same day, Rama Thiyagaraja Kumar was summoned and after recording his statement, he was arrested and remanded to judicial custody. His bail application filed before the Trial Court was dismissed on 14.11.2003. Ex.P.14 and Ex.P.20 are the FAX messages. Ex.P.14 is the communication sent to Thiru.Sivasankaran, P.W.7 by Assistant Manager, Trichy. This is dated 17.11.2003. The communication was sent through FAX and FAX copy of Ex.P.14 is marked as Ex.P.20. The appellant herein had received it on 18.01.2003 and he has made initial on the top of the FAX message and the initial is also exclusively marked as Ex.P.21.
12.It is the case of the prosecution that despite receiving FAX message, which has instructed the appellant not to oppose the bail petition, he has called the de facto complainant and demanded Rs.30,000/- as bribe to record his no objection for the release of Rama Thiyagaraja Kumar, nephew of the de facto complainant.
13.This Court after giving due consideration to this FAX communication and the contents of it, could able to see certain facts which are not expressly spoken by the witnesses. First of all, when the appellant is investigating a very serious crime of illicit trafficking of huge quantity of heroin to Srilanka, his higher officials after personal briefing with his Assistant Commissioners, had communicated not to oppose bail of the two lorry drivers and CHA representative, since they are innocents. Ex.P.14, FAX message is extracted below:
?Please refer to your office letter C.No.VIII/10/21/2003 dated 10.11.2003 enclosing copies of Seizure Mahazar, statement of the six accused persons and other related documents mentioned in respect of above case and the Assistant Commissioner's personal briefing on the facts of the case to the Commissioner on 14.11.03.
2.Commissioner had instructed Assistant Commissioner in the very beginning itself that during investigation, no innocent person who had no knowledge about the transport and export of the Narcotics shall be put to any difficulties including arrest.
3.Assistant Commissioner on 14.11.03 informed Commissioner that further investigation revealed that 2 drivers and one clerk of CHA firm do not appear to have any role in the case.
4.Commissioner instructed Assistant Commissioner that if this is the position on record, Department shall not have any objection to the bail application of these persons and others if any.
5.Commissioner had also instructed that all the main accused in the case shall be prosecuted with all evidences?.
This communication has been received by the appellant on 18.11.2003. Thereafter, no bail petition filed on behalf of Rama Thiyagaraja Kumar, so as to say no objection by the appellant, as instructed by the Commissioner vide his message, dated 17.11.2003. The petition for extension of remand, by no stretch of imagination, could be equated to objection to bail petition. Section 37 of Narcotic Drugs and Psychotropic Substances Act imposes twin conditions on the Court for granting bail. Without an application for bail, without hearing the prosecution and without recording the reason to believe that the accused is not guilty, bail cannot be granted for offences under Narcotic Drugs and Psychotropic Substances Act, when the contraband involved is of commercial quantity. Under such circumstances, mere filing of an application for extension of remand could not be construed as to defying the direction of the higher officials, namely, the Commissioner of Customs. In the said background, P.W.2, a close relative of the accused Rama Thiyagaraja Kumar, had lodged a complaint [Ex.P.3] addressed to the Superintendent of Police, CBI, Shastri Bhavan, Chennai on 09.01.2004. Ex.P.9 is the letter forwarded to the Superintendent of Police by P.W.5, Sridaran, the trap laying officer. This letter has been forwarded to the Superintendent of Police, CBI at Chennai by Sridaran after receiving the complaint, Ex.P.3. After getting telephonic instruction from the Superintendent of Police, he has proceeded to lay trap against S.P.Mayandi. He has forwarded the said letter, Ex.P.9, through Special Messenger. During the course of cross-examination of P.W.8, the endorsement made in the said letter Ex.P.9, is marked as Ex.D.13. This endorsement indicates that the Superintendent of Police at Chennai, received the letter Ex.P.9 and has instructed Sureshkumer, Inspector to register and investigate. It is signed and dated 10.01.2004. Ex.P.26, is the First Information Report, dated 10.01.2004. By that time the First Information Report was registered on 10.01.2004 at 08.00 a.m., the entire trap proceeding has been completed. The seizure mahazar Ex.P.5 indicates that it commenced at 10.50 hours and completed at 12.00 hours on 09.01.2004. The accused was arrested and also released on bail on the same day. The time of the complaint is not whispered by any of the witnesses or mentioned in the complaint, Ex.P.3. Whether really before proceeding with the trap, P.W.5 made any preliminary enquiry about the appellant/accused or the genuineness of the complaint, is also not disclosed. Since the pre-trap mahazar indicates that it is started by 08.30 hours and completed by 10.00 hours, it is hard to believe that the trap laying officer had made any preliminary enquiry about the accused as well as the complaint, before proceeding with the trap.
14.The next point for concern is the alleged recovery of tainted money. While P.W.2, de facto complainant says that the appellant was sitting in front hall in lungi and banian and was watching television. He (P.W.2) told that he was not able to arrange Rs.30,000/-, but was able to mobilise only Rs.10,000/- and requested the appellant to accept it. The appellant refused to accept it and asked to give Rs.30,000/- in one time. When he pleaded to release his nephew and gave Rs.10,000/-, the appellant accepted the money and put the money in the nearby chair. The micro cassette, which is supposed to have recorded the said conversation, was not transcribed and produced before the Court. Therefore, the one and only evidence for payment and acceptance is the evidence of P.W.2. From the deposition of P.W.2, we could find that after completion of the trap, when he has enquired, he told that the accused initially demanded Rs.30,000/-. When he said that he was not able to bring Rs.30,000/-, as demanded, but brought Rs.10,000/-, the accused told him to give the balance after release of Rama Thiyagaraja Kumar and asked the complainant to keep the money on the chair adjacent to him. Accordingly, he kept the money as per the instruction of the accused and came out of the house. In the recovery mahazar (Ex.P.5), which is a contemporaneous document prepared immediately after the recovery of tainted money, it is recorded by the trap laying officer and signed by all the witnesses. A copy of it, which was served to the accused, also reveals that S.P.Mayandi (appellant) told the de facto complainant to pay the balance amount after the release of Rama Thiyagaraja Kumar. Then asked Murugappan, to keep the bribe amount of Rs.10,000/- in the red plastic chair. Accordingly, K.L.A.Murugappan (P.W.2) kept the tainted money on the red plastic chair and came out to show the prearranged signal. Thus, there is a discrepancy and contradiction regarding whether the tainted money was received by the accused. No doubt, the Chemical Analysis Report indicates the presence of phenolphthalein in both the hand wash as well as the wash collected from the chair. The presence of phenolphthalein in the hands of the appellant, could not be a conclusive indication that it was due to handling of the tainted currency. Mere presence of phenolphthalein in the hands of the accused is not a proof of demand and receipt of gratification. The micro cassette, which should contain the conversation between the appellant and the de facto complainant, has not been transcribed and placed before the Court. Thus, the best evidence, in the said circumstances, has been omitted to be placed before the Court. The reason to demand gratification in this case is to record no objection for the bail application likely to be filed in future. Admittedly, no bail petition was pending or filed, after the dismissal of the bail petition on 14.11.2003, till 09.01.2004, the day of trap. Through cross examination of P.W.2, it is elicited that the bail petition filed subsequent to the trap was also dismissed by the Trial Court. Ex.D.3, the letter dated 23.01.2004 of Mr.D.Sivasankaran, Assistant Commissioner of Customs (P.W.7), addressed to the Commissioner of Customs complaining about the conduct of the Special Public Prosecutor, who was incharge of the Narcotic Drugs and Psychotropic Substance Case, for recording his objection addressing the Presiding Officer directly regarding the bail petitions, indicates that some special care has been bestowed by the Commissioner to see that Rama Thiyagaraja Kumar is released on bail. The accused, who was the investigation officer and the Special Public Prosecutor, who was dealing with the case, did not fall in line with the Commissioner. From the cross- examination of P.W.7, we find that the Court has took exception for addressing the Court by Thiru.Murugan, Superintendent of Customs, directly regarding the pending bail petition. The necessity for the superior officer to record innocence in the course of investigation of grave crime, like drug trafficking, soon after the arrest of Rama Thiyagaraja Kumar also indicates that there was interference in the investigation and the appellant herein has not yielded to the pressure. In the said circumstances, when the prosecution has failed to prove beyond doubt, the demand and acceptance through acceptable evidence and when the presumption is rebutted through defence exhibits, the conviction of the Trial Court is unsustainable. Therefore, the conviction and sentence dated 25.04.2007, passed in C.C.No.18 of 2004 by the learned Special Judge for CBI Cases, Madurai are liable to be set aside.
15.In the result, this Criminal Appeal is allowed and the conviction and sentence dated 25.04.2007, passed in C.C.No.18 of 2004 by the learned Special Judge for CBI Cases, Madurai are set aside. Since the appellant/accused is no more, his wife, who has impleaded herself as appellant and pursued the appeal, is entitled to get back the fine amount paid, if any.
To
1.The Special Judge for CBI Cases, Madurai.
2.The Inspector of Police, SPE/CBI/ACB/Chennai.
3.The Special Public Prosecutor for CBI Cases, Madurai Bench of Madras High Court, Madurai.
.