Madras High Court
K.S.Gnanasekar vs Prem Pratap Singh Sisodia on 25 January, 2008
Author: S.Ashok Kumar
Bench: S.Ashok Kumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25/01/2008 CORAM THE HONOURABLE MR.JUSTICE S.ASHOK KUMAR Crl.A.(MD).Nos.712 of 1999 K.S.Gnanasekar Supdt., of Central Excise Customs Preventive Unit, Tuticorin. ... Appellant Vs 1. Prem Pratap Singh Sisodia alias Prem Singh Sisodia alias Prem Pratap Sisodia 2. Anil Bhai Balwant Rai Desai ... Respondents Prayer Criminal Appeal is filed under Section 378 Cr.P.C. against the judgment dated 28.5.1999 on the file of the Special District and Sessions Judge, Madurai, in S.C.No.113 of 1995. !For Appellant ... Mr.C.Arulvadivel alias Sekar ^For Respondents ... Mr.B.Kumar, S.C., for Mr.K.Chandrasekar :JUDGMENT
The state, represented by Shri K.S.Gnanasekar, Superintendent of Central Excise Customs Preventive Unit, Tuticorin has preferred this appeal against the acquittal of the respondents herein for the alleged offences under sections 8(C), 22, 29, 9-A, 25-A of NDPS Act and Section 135-A of Customs Act, passed by the Special District and Sessions Court (The Narcotic Drugs and Psychotropic Substances Act Court), Madurai in C.C.No.113/95.
2. The charges against the respondents who had been arrayed as A1 and A2 before the trial court are that:
i) On 12.12.1994 the officers attached to Customs Preventive Unit, Tuticorin acting on information searched the premises M/s.Patel Roadways Ltd, Tuticorin and the officers located seven numbers of big cylinders painted with yellow colour in the said premises which were found to tally with the information received earlier. Then the officers enquired about the cylinders from the branch Manager of M/s.Patel Roadways Ltd., Shri V.V.Subramanian and asked him to produce the relevant documents pertaining to the seven cylinders which were lying there. The said Subramanian produced the Way Bill (Goods consignment note) Driver's copy No.437941 dated 02.12.1994, Invoice No.171, dated 02.12.1994 of Mehul Agencies, Near Songadh, Ia-Vyara, Surat District Marine, Cargo Acceptance Advice cum Receipt No.8102, dated 01.12.1994 of the Oriental Insurance Company Ltd., Truck unloading report No.525587 dated 05.12.1994 of M/s.Patel Roadways Limited pertaining to the above said seven cylinders. The goods consignment note claimed the consignor as M/s.Mehul Agencies, Vyara Surat, the consignee as M/s.Meenakshi Enterprises, Tuticorin -1 and the consignment was 9800 kgs of Chlorine Gas etc., In the invoice copy, the name of the consignee is shown as M/s.Meenakshi Enterprises, 123/2, Gin Factory Road, Tuticorin -628001 (Tamil Nadu) Factory 24/3, Sipcot Industrial-1 Estate, Harbour Road, Tuticorin.
Immediately on verification of the particulars contained in the invoice copy, it was found that there is no such firm as M/s.Meenakshi Enterprises in the above said premises at Tuticorin and was found to be fictitious. Of the seven cylinders, one of them was cut open and found to contain 704 nos of Polythene packets containing a round size tablets with letter `w' on the one side and swasthik mark on the other side. One polythene packet was found to contain thousand tablets weighing 600 grams and tested positive for psychotropic substances Methaqualone with the Narcotic test kit. Hence, the officers seized all the seven number of cylinder with its contents on the reasonable belief that they contained psychotropic substance viz. Methaqualone (Mandrax tablets) kept for illicit export and also seized the connected and other documents under a Mahazar. Since the place of seizure was not found safe and secure for cutting of all the cylinders, the said six unopened cylinders along with one cut opened cylinder and its contents were brought to the Customs Office at Tuticorin for opening and for inventory.
ii) On the same date i.e. on 12.12.1994, all the remaining six cylinders were cut open at the Customs Office, Tuticorin in the presence of the independent witnesses and Shri V.V.Subramanian and found that each of the said six cylinders were containing Mandrax tablets packed in polythene bags with packing materials. Thus, all the seven cylinders were found to contain 5000 nos. of polythene packets containing Mandrax tablets weighting in all 3100.7 kgs. The representative samples were sent to the Central Revenue Control Laboratory, Hill Side Road, Pusa, New Delhi-12, for chemical analysis. The Assistant Chemical Examiner in his report dated 20.12.1994 has stated that each of the seven samples (Mandrax tables) is in the form of grey coloured tablet and each answers positive test for methaqualone and is covered under NDPS Act 1985.
iii) The officers on 13.12.1994 examined Shri. Rajamani, S/o Shri.Ramasamy, Asst. General Manager,(South) M/s.Patel Roadways Ltd.,Bangalore and recorded his statement and in his statement he has stated inter alia that the consignment under seizure was booked by their Unn branch from the consignor M/s.Mehul Agencies, Vyara, Surat District vide their lorry receipt No.705/437941, dated 02.12.1994 to Tuticorin; that in the invoice, the consignor has given declaration that contents were chlorine gas filled in seven cylinders, that the same had been booked as full truck load, transported and reached Tuticorin on 05.12.1994 as per truck loading report. The truck manifest challan of inwards is 705/797318 dated 02.12.1994. Truck No.KA 01 9855 was seized from M/s.Patel Roadways Ltd., Tuticorin along with other documents under a Mahazar for further action on the same date.
iv) While the officers were keeping surveillance of M/s.Patel Roadways Ltd.,on 15.12.1994, they noticed three persons entered in the above said Lorry Office and were talking with the persons at M/s.Patel Roadways Ltd., with some papers and found one of them was having some papers in his hand. The said three persons when questioned, revealed their identity as Rajendrakumar Sharma, G.T.Rana and Subramanian respectively. The first two identified themselves as persons from M/s.Mehul Agencies, Surat and the third person was stated to be Subramanian, Branch Manager, Meenakshi Agencies, Madurai. Then the officers seized the Goods Consignment Note, Consignee's Copy 705 No.537941, dated 02.12.1994 for the transport of seven cylinders of chlorine gas; Invoice No.171, dated 02.12.1994 of Mehul Agencies, Surat District, suppliers of Industrial Gases, Insurance advice No.8102/01.12.1992 for policy No.95/00059, Invoice No.192 dated NIL of M/s.Meenakshmi Agencies, 123, Gin Factory Road, Tuticorin addressed to Elcon Industries, Baikampady Industrial Estae, New Mangalore - 575011 (Karnataka State) 3 copies, Plain Invoice of M/s.Meenakshi Enterprises, 123, Gin Factory Road, Tuticorin-3 and copies from the said Rajendrakumar Sharma.
v) On the same day i.e. 15.12.1994 the above said apprehended persons viz. Rajendra Kumar Sharma and G.T.Rana were brought to the Customs Office, Tuticorin for enquiry. The abovesaid two persons i.e. Rajendra Kumar Sharma and G.T.Rana on enquiry revealed their original names as Prem Singh Sisodia and Anil Bhai Balwant Rai Desai respectively. The accused in their voluntary statements have interalia admitted that they used fictitious names Rajendra Kumar Sharma and G.T.Rana respectively, that they came to M/s.Patel Roadways Ltd., Tuticorin with one Shri Palaniappan to rebook the consignment of the seven cylinder of Mandrax tablets to Mangalore, that the seized cylinder with Mandrax tablets belonged to them only. They also admitted that they had sent the Mandrax tablets concealed in the seven gas cylinders clandestinely under fictitious names. They were arrested on 18.12.1994 at 9.00 p.m., and remanded to custody on 19.12.1994.
vi) On 21.12.1994 the Customs Officers of Trichy and Salem visited M/s. Jayalakshmi Chemicals Pvt Ltd., No.57/2 C, Anaipalayam, Andagalur -637401 along with independent witnesses and at that time the employees of the said concern viz., K.Swamiappan, K.Paramasivam and Palaniappan were also present there. The customs officers showed the copies of the statements of the accused and its Tamil translations to Swamiappan and enquired him with reference to the statements obtained from Rajendra Kumar Sharma and G.T.Rana.
vii) The officers also found 242 cans containing about 19.17 of Acetic Anhydride, a controlled substance as defined in the NDPS Act in the premises of M/s.Jayalakshmi Chemicals without any valid and Mandatory documents as required under notifications and orders issued under the NDPs Act. After taking representative samples from the chemicals i.e., Acetic Anhydride for chemical analysis, the same were seized along with some documents from the said concern under a Mahazar. Further, on 22.12.1994 morning, the Customs Officers again visited the abovesaid concern viz., M/s. Jayalakshmi Chemicals and seized 800 HDPE Gunny bags containing about 20 tonnes of paracetamol powder along with the documents and empty gunny bags after drawing representative samples for chemical analysis under a Mahazar in the presence of witnesses on the reasonable belief that the paracetamol powder was purchased in open market and stocked by the accused in the said concern to cover up the illicit diversion of Acetic Anhydride for the clandestine manufacture of Methaqualone in their factory M/s.Hari Om Engineers, Chikli. The officers also detained all the properties of M/s.Jayalakshmi Chemicals Pvt. Ltd., Anaipalayam on the reasonable belief that the concern was purchased out of the sale proceeds of Mandrax tablets by the accused under fictitious names. The officers also seized a sum of Rs.80,000/- from Shri. R.Paramasivam, an employee of M/s.Jayalakshmi Chemicals on 30.12.1994 and on further follow-up action, the officers also seized Rs.3,50,000/- on 16.01.1995 from one Shri K.Rengarajan under Mahazar on the reasonable belief that the amounts represented sale proceeds of Mandrax tablets. Therefore the charges have been framed for the offences U/s 8(C), 22, 29, 9-A, 25-A of the NDPS Act and Section 135-A of the Customs Act.
3. Accordingly, charges were framed and when the accused were questioned about the same, they denied having committed any of the offence charged against them. Hence the trial was conducted by the Sessions Court.
4. On behalf of the prosecution, PW-1 to PW-31 were examined and several documents were marked as Ex.P1 to Ex.P.199.
5. PW-1, Gnanasekar, Superintendent, Customs Preventive Unit, Tuticorin, in his evidence stated that PW-17, Muthukrishnan, Customs Inspector has received an information and he recorded it and handed over it to him as well as to the Assistant Collector of Customs, Ex.P1 is the information report. On that basis, PW-1, PW-17, and one N.Ramesh, Ulaganathan along with Assistant Collector of Customs, Tuticorin went to M/s.Patel Roadways, Tuticorin on 12.12.1994 at about 9.00 a.m., and at that time PW-14 (V.V.Subramanian), Branch Manager of Patel Roadways was present and in his presence the office was searched and they found 7 cylinders of yellow colour in the open air in front of the Godown. The documents pertaining to these 7 cylinders Ex.P3 to Ex.P6 were handed over by PW-14 to him. The Mahazar was marked as Ex.P2. PW-1 instructed PW-17 to verify the address found in Ex.P3 to Ex.P6. It was later stated that there was no such addressee viz., Meenakshi Enterprises was found as mentioned in Ex.P3 to Ex.P6. He further stated that in the presence of other witness, one cylinder was cut open and found 704 polythene packets. Each pocket contains 1000 tablets of Mandrax. When questioned, PW-14 answered that on earlier occasion also 7 cylinders came in the month of October 1994 and was taken delivery by one Dhanraj. Later, all the cylinders were taken to Customs Office, Tuticorin and the balance 6 cylinders were cut open there and found to contain 5000 packets of Mandrox tablets. The total weight of 3100.7 kg of Mandrax tablets were seized as per Mahazar Ex.P8. Samples were taken from each cylinder and sent to New Delhi for Laboratory test on 13.12.1994 and Ex.P10 and Ex.P11 are test memos and on 20.12.1994 report Ex.P12 was received and as per the report, the tablets were found to contain Methaqualane. Again on 13.12.1994, PW-1 sent PW-2 to Patel Roadways, Tuticorin for further search and two documents were seized under Mahazar Ex.P14. PW-1 examined PW-14 Paul Pandian, Saveria Pitchai of Patel Roadways and recorded their statements on 15.12.1994. Their statements were Ex.P17, 18 and 19 respectively. On 15.12.1994, when they kept surveillance over Patel Roadways Office, at 11.45 p.m., three persons entered the office and on suspicion the three persons were followed by PW-1 and other officers and they were A1, A2 and PW-20. In the presence of Johnson, PW-23, PW-16, Virupachan of Patel Roadways documents Ex.P23 series were seized from the Patel Roadways Office from A1 under Mahazar Ex.P24. In the afternoon of 15.12.1994, PW-13 was examined. A1 and A2 were taken to Customs House, Tuticorin and were examined by PW-1 in the presence of PW-15 and one Xavier and A1 and A2 disclosed their real names as Premsingh Sisodia and Balwinder Rai Desai. They were searched in the presence of Assistant Collector of Customs and M.O. 12 to M.O.15 were seized from A2 and M.O.16 to M.O.25 seized from A1. From M.O.16, the documents Ex.P26 to Ex.P37 were seized. The Mahazar was Ex.P38, PW-1 prepared one Mahazar Ex.P40 in the Customs House, and in that it was mentioned that A1 and A2 accepted that they only prepared the tablets and sent from the place Unn to Tuticorin in the cylinders. As per the direction of Assistant Collector of Customs, Tuticorin, PW-3 searched the Rooms of Pandian Hotel, Madurai, where A1 A2 and PW-20 stayed and he submitted his report under section 57. On 16.12.1994, PW20, 21, 22 and PW6 were examined and their statements Exs.P47, 43, 44, 45 were recorded. One Renganathan, Lorry driver was also examined and his statement Ex.P46 was recorded. A1 and A2 were kept in their customs office from 15.12.1994 till 19.12.1994 and their statements dated 16.12.1994, 17.12.1994 and 18.12.1994 were recorded. They are Ex.P41 and 48 and 42 and 49 respectively. On 18.12.1994 at
9.P.M, A1 and A2 were arrested. Arrest memos are Ex.P50 and 51. They were produced before the concerned Judicial Magistrate for remand on 19.12.1994, 5.00 p.m. Ex.P.53 is the Remand Report. PW-1 sent report under section 57 of NDPS Act. That is Ex.P52. Form 95 is marked as Ex.P54. As per Ex.P55, the seized goods were produced before the Magistrate Court on 19.12.1994. Ex.P56 is the deposit Memo. After completing investigation, PW1 preferred complaint on 21.02.1995 before the Special Court, Madurai. That is Ex.P57.
6. PW-2, Chinnasamy, Customs Inspector, Tuticorin stated that as per the instruction of PW-1, he went to Patel Roadways Office and recovered the documents Mahazar Ex.P14. Ex.P16 is the section 57 report submitted by him to PW-1.
7. PW-3, Madhavan, Superintendent of Customs, Preventive Unit, Madurai deposed that as per the instruction of Assistant Collector of Customs, Tuticorin he went to Pandian Hotel, Madurai on 15.12.1994 at about 3.30 p.m. and in the presence of PW-14 and one Ramakrishnan, searched the Room Nos. 203 and 207. In Room 207, M.O.27 (suitcase) was found. In M.O.27, personal belongings and certain other papers were found. All were seized under Mahazar Ex.P67. In Room 203, a bag M.O.30 was found inside suitcase M.O.29. This bag contained Indian Currency of Rs.64,000/-. The other documents found in M.O.29 were all seized under Mahazar Ex.P.97. PW-14 was examined and his statement Ex.P98 was recorded. PW-14 handed over the occupancy list Ex.P.99 and the food bills and telephone bills of Room Nos.203 and 207, viz., Ex.P100 to Ex.P113. Section 57 report submitted by PW-3 to his Superintendent Officer is Ex.P.114.
8. PW-4, Sundaraj, was the then Manager of Pandian Hotel, Madurai. He stated that he signed in the seizure Mahazar Ex.P67 and Ex.P.97 and has given a statement Ex.P.98. According to PW-4, the Room No.203 booked in the name of Subbarao. But he failed to identify either A1 or A4 as Subbarao who stayed in their Hotel.
9. PW-5, Moses, Customs Inspector, Trichy inhis evidence stated that as per the direction of customs officials Tuticorin, he along with PW-28 (Madhavaraj, Superintendent, DRI, Trichy) and other officers went to the factory of M/s.Jayalakshmi Chemicals on 22.12.1994. In the presence of PWs-20, 21 and 22, 800 bags containing paracetamol powder was seized under Mahazar Ex.P127. Delivery memo challan Ex.P128, Invoice Ex.P.130, Form 45-A Declaration Ex.P132, 133 and other documents Ex.P134 to Ex.P139 were also seized. Report under section 57 is marked Ex.P.140.
10. PW-6, Sivaraj, Lorry Driver stated that he has driven the lorry containing the 7 cylinders from Surat to Tuticorin. He has given a statement which is marked as Ex.P45. Identification of a person who gave the cylinders at Surat was done only on the basis of showing a single photo of A2 to PW6.
11. PW-7, Jabaraj Rajkumar, Customs and Excise Inspector working in Investigation Wing, Trichy stated that he along with PW-28 and other officers went to M/s.Jayalakshmi Chemicals and enquired PWs20, and 21 and 22. By showing the Tamil translated statement Ex.P142, document, dated 17.12.1994 to PW21, he confirmed after reading it that it was the statement of A2 and he admitted that out of the sale proceeds of narcotic drugs, A2 has given Rs.One lakh and thirty five thousand and seven hundred fifteen to PW-21, Rs.One lakh to Pw-22 and the same was handed over to Pw-21 by Pw-22. On enquiry, Pw-21 has handed over three packets which contained Rs.1,35,715/=, Rs.1,00,000/= and Rs.1,82,500/= respectively. The amounts were seized under Mahazar Ex.P.141. Report under section 57 was submitted to Pw-28 which is Ex.P.143.
12. PW-8, Kannan, Customs Inspector of the Investigation Wing, Trichy stated that on 24.12.1994 he along with Pw-28 went to M/s.Jayalakshmai Chemicals and searched the premises and seized a Maruti Car M.O.42 under Mahazar Ex. P147. On 30.12.1994, Pw-22, handed over Rs.80,000/- to Pw-28 and as per instruction of Pw-28, Pw-8 seized it under Mahazar Ex.P148. Pw-22 has given a letter Ex.P149. Pw-8 submitted a report under section 57 to Pw-28 which is marked as Ex.P150.
13. PW-9, Nagarajan, of Customs intelligent Wing, Trichy stated that on 6.1.1995, one Rengaraj Pw-10 who was the owner of Alpha Drugs (P) Ltd., Salem came to him and told that he received Rs.6,50,000/- from one Rajendra Sharma towards advance for the purchase of his factory. Out of the amount PW-10 handed over Rs.3,50,000/- to Pw-9 which was seized under Mahazar Ex.P151. Report under section 57 was submitted to Pw28 which is Ex.P.152.
14. PW-10, Rengarajan, owner of Alpha Drugs (P) Ltd., Salem stated that he was approached by two persons Rajendra Sharma and Anilbhai and they were brought by PW-22 in the month of October 1994 for the purchase of his factory. He stated that the purchase amount was fixed as Rs.19,60,000/- and received an advance of Rs.6,50,000/- and Rs.3,50,000/- was handed over to PW-9 under Ex.P15 on 16.01.1995. The balance amount of Rs.3 lakhs was handed over to PW-9 on 27.01.1995 under Mahazar Ex.P154. Xxxxxxxxxx PW-10 further says that photographs were shown to him when he handed over the amount to the officers. He identified A1 and A2 in the court. There was no sale agreement entered into between him and Anilbhai and nothing was discussed about when the sale deed was to be executed. He further stated that he did not give any statement to the customs officers.
15. PW-11, Prabakar, Inspector of Customs Preventive Unit, Salem stated that he along with PW-12, Rajendran customs Superintendent, Salem and other officers went to M/s.Jayalakshmi Chemicals on 21.12.1994 and enquired PW-20, PW-21 and PW-22 pertaining to purchase of Acetic Anhydride, an ingredient necessary for the production a paracetamol and the relevant documents Ex.P155 to Ex.P180 were seized. He further stated that 242 cans containing Acetic Anhydride were found in the premises and seized under Mahazar Ex.P181. Report under section 57 was submitted to Pw-12 which is Ex.P183. Pw-11 also concedes that he could not deny the fact that the purchase order of Acedic Anhydride was given by and taken delivery of the same by Pw-20,Pw-21 and Pw-22 only and they were in the management of the factory at that time.
16. PW-12, Rajendran, Superintendent of Customs, Salem corroborated the evidence of Pw11.
17. PW-13, Vetrivel, the driver of Contessa Car who has driven the car from Madurai to Tuticorin travelled by A1, A2 and another person identified A1 and A2 in court as the persons travelled in his car on 15.12.1994. He has given a statement Ex.P25, dated 15.12.1994. He admitted that he has Written Trip sheet and the same was seen by the customs officers but was not recovered. He further stated that the three persons got down from his car at about 12.30 to 1.00 P.M., and he was taken to customs house at about 2.00 p.m., and he did not know whether the persons traveled in his car were available in the customs office.
18. PW-14, V.V.Subramaniam, Branch Manager of Patel Roadways Ltd., Tuticorin stated about the search and seizure of documents under Mahazar Ex.P2, dated 12.12.1994 and Mahazar Ex.P8. He has given a statement Ex.P17, dated 15.12.1994.
19. PW-15, Marimuthu, independent witness who along with one Xavier signed in Ex.P38 and Ex.P40 dated 15.12.1994 did not identify the accused and denied knowledge about any seizure from the accused. He was treated hostile.
20. PW-16, Niranjan Singh, Deputy Manager of Patel Roadways, Bangalore has stated that on 15.12.1994 at about 12.00 noon when he along with Virupakchan, Branch Manager of Patel Roadways, Madurai were in the office of Patel Roadways, Tuticorin, three persons came to their office. One person introduced himself as Rajendran Kumar G.Rana and they told they were coming from Mehul Agencies, Surat. The third person identified himself as Subramaniam. The two persons were having documents in their possession. He further stated that the documents were seized from the pant pockets of the two persons and the suitcase under Mahazar Ex.P24.
21. PW-17, Muthukrishnan, Customs Inspector, Tuticorin, in his evidence stated that he received an information on 12.12.1994 at 1.00 a.m., in his house and the same was directly informed to Pw-1 and Assistant Collector of Customs on 12.12.1994. On that basis, he along with Pw-1, Assistant Collector of Customs, Tuticorin and other witnesses went to Patel Roadways Office, Tuticorin and he corroborates the evidence of Pw-1 as far as the incident on 12.12.1994. Pw-17 further stated that he typed the information in English which was in Tamil at 9 a.m., on 12.12.1994 in his office. He admitted that the information contained the names of Dharmalingam and Amalraj and there is nothing to show that they were traced by the officers from 12.12.1994 till 15.12.1994 and till now both were not arrested.
22. PW-18, Subbulakshmi is the Assistant Chemical Examiner and she gave the chemical report Ex.P189 about the Acidic Anhydride.
23. PW-19, D.K.Bansal, Asst. Chemical Examiner, Central Revenues Control Laboratory, New Delhi. He speaks about the Report Ex.P12, dated 20.12.1994.
24. PW-20, is Palaniappan of M/s.Jayalakshmi Chemicals. He has spoken about the sale publication of Jayalakshmi Chemicals and the approach of two persons Rajendra Sharma and Anilbhai Patel to Samiappan (PW-21) for the purchase of the factory and the payment of advance. He did not identify the accused as the two persons. He denied that the accused stayed in Pandian Hotel travelled along with him. He denied the seizure of documents from the accused and denied that he went along with the accused and to Patel Roadways Office, Tuticorin. He was treated as hostile witness. He stated that he was tortured to give a statement as per the whims of the officers. He was kept for 4 days in the customs office room. In the next room, he has seen the accused and they told him they were beaten up by the officers. He heard the screaming noise and he did not know who screamed.
25. PW-21, Samiappan, corroborated the evidence of PW-20 as far as the publication of the sale of Jayalakshmi Chemicals and the advance received from Rajender Sharma and Anilbhai. However, he did not identify the accused as the two persons. He further stated about the seizure of Paracetamol Powder from his factory. Since he did not identify the accused, he was treated as hostile. He stated he signed in blank papers as told by the officers and he was threatened to give a statement as per the direction of the officers.
26. PW-22, Dr.Paramasivam stated about the purchase of Jayalakshmi Chemicals by Rajender Sharma and Anilbhai and the purchase of Paracetamol powder and Acidic anhydride by Anilbhai and the advance paid towards the purchase of Alpha Drugs Ltd. He has given a statement under Ex.P44. He corroborates the evidence of Pw-7, Pw-8 and Pw-11 as far as the seizure of Paracetamol Powder, handing over the advance amount received from Anilbhai. However, he emphatically stated that he never met the accused before 16.12.1994 when the customs officers told him that A1 was Rajender Sharma and A2 was Anilbhai. He also denied that he had any connection with the accused. He was treated as hostile. He further stated that he gave a statement Ex.P149 under threat. He also admitted that Pw-20 and Pw-21 run Jayalakshmi Chemicals and he was in-charge of the production in the factory and at no point of time, Rajender Sharma and Anilbhai run the management.
27. PW-23, Rajasekar, one of the witness signed in Mahazar Ex.P24 dated 15.12.1994 did not identify the accused. In his cross examination, he stated that the officers told him that the documents pertaining to the cylinders seized on 12.12.1994 were with the three persons and he was told by the officers that the documents were seized from the persons.
28. PW-24, Ganesan, who stated about the Maruti Van bearing registration No:
T.N.01-H7872 which is seized as M.O.42. PW-25, Kandasamy, is the brother-in-law of PW-22. He has stated about the purchase of Maruti Van TN-01-H7872 for Jayalakshmi Chemicals. PW-26, Sandeep, Area Manager of Coimbatore Autoline has stated about the purchase of the Maruti Van TN-01-H7872.
29. PW-27, Arivazhagan, independent witness who signed in Ex.P141, Ex.p181 and Ex.P127.
30. PW-28, Madhavaraj, Superintendent of Customs, Investigation Wing, Trichy corroborated the evidences of Pw-5, Pw-7, Pw-8 and Pw-9.
31. PW-29, A.N.Palaniappan who signed in Ex.P148 and Ex.P149.
32. PW-30, Thirugnanasundaram, Customs Preventive Unit Inspector, Tuticorin, spoke about the seizure of documents on 12.12.1994 and on 15.12.1994 and assisted Pw-1 in his seizure. He denied that he kept surveillance over Patel Roadways from 12.12.1994 to 15.12.1994. He had no knowledge whether other officers kept surveillance. He had no knowledge whether Pw-1 has given any warning to the accused when Ex.P20 to Ex.P23 were recovered on 15.12.1994 and nothing was mentioned in Ex.P24 about the warning when the documents Ex.P20 to Ex.P23 were seized in Patel Roadways Office on 15.12.1994 from the accused.
33. PW-31, Mariappan, Customs Preventive Unit Inspector, Tuticorin who also assisted Pw-1 in his investigation and examination of the accused stated that he has prepared the Mahazar Ex.P.38, Ex.P40, the statements of Pw-6 (Ex.P45) and the statement of one Renganathan (Ex.P.46).
34. The accused were questioned under section 313 Cr.P.C. with reference to the incriminating materials found against them in the evidence of the prosecution witnesses. They denied having committed any office and their complicity in the case.
35. On behalf of the accused, DW1, S.Thangam, Assistant Prison Officer, Madurai and DW2, Dr.K.sundararajan, Prison Doctor, Madurai were examined and the prison records were marked as Ex.D1 to Ex.D6.
36. DW1, in his evidence stated that on 19.12.1994, both the accused were brought to Central Prison, Madurai as remand prisoners. Ex.D1 was the prisoners' register book maintained in the prison. A1 was given the number 1171 and A2 was given the number 1172. Both A1 and A2 were brought late night to the prison and at that time both complained of leg pain and noted the same in Ex.D1 which note was marked as Ex.D2. It was mentioned in that A1 complained of contusion on his left leg and pain on his palms because of beating. The note with regard to No.1172 mentions that A2 complained of pain on his both palms and he was unable to walk. Dw1 denied that Ex.D2 was subsequently written in Ex.D1 after deleting the original writing. He also denied the suggestion that it was written in some other pen. Since the ink was exhausted, new ink was filled up and Ex.D2 was written.
37. DW2, in his evidence stated that during December 1994 he was working as prison doctor in Madurai Central Prison and has given medical treatment to A1 and A2 in the Central Prison. Both were in-patients in Central Prison hospital. Dw2 has given letters Ex.D3 and Ex.D5 to Superintendent, Central prison, Madurai mentioning the nature of complaint by A1 and A2. O.P. Chits Ex.D4 and Ex.D6 were also enclosed. As per the records Ex.D4 to Ex.D6, A1 was complaining body pain, chest pain and giddiness. He was examined thoroughly and on examination, there was a contusion mark in his left calf muscles. He was detained in jail hospital and treated from 22.12.1994 to 02.01.1995. He was produced before the Chief Medical Officer and seen by him. He was advised to take same line of treatment. Similarly, A2 was complaining of low back pain, body pain and pain over both feet. He was examined thoroughly and on examination and with his past history he was diagonised as known case of diabetic and treated with suitable drugs from 22.12.1994 to 02.01.1995 as in-patent in jail hospital. He was produced before the Chief Medical Officer and seen by him and was advised to take same line of treatment.
38. The learned Special Judge after analysing the evidence, both oral and documentary available on record and after hearing the counsel appeared on both sides had acquitted the respondents herein of all offences on various grounds. Aggrieved of the said acquittal, this appeal is preferred by the Customs Department.
39. The learned special public prosecutor appearing for the appellant argued that the learned Special Judge has committed a gave error in holding that the procedure as contemplated under section 42 (1) (2) has been violated. It is contended that the procedure under section 42 need not be followed since the seizure of the contraband was in the open space in front of the godown of Patel Roadways, Tuticorin and it was a public place and therefore section 43 will be attracted. He has also placed reliance on certain judgments in support of his contention. There is no quarrel over the above proposition. It is an admitted fact that on 12.12.1994, the officers of customs found 7 cylinders in the godown of Patel Roadways Office and on cutting them open, they found Mandrax Tablets inside the cylinders.
40. The trial court has given various reasons for the acquittal. Violation of section 42(1) (2) was one of the reasons. But that is not the only reason for acquittal.
41. The learned special Public Prosecutor mainly relied upon the following material evidences to connect the accused with the seizure of Mandrax tablets on 12.12.1994 at Patel Roadways, Tuticorin.
a) The seizure of Consignment Note 43794, dated 02.12.1994 (Ex.P3), Invoice Code 171, dated 02.12.1994 of Mehul Agencies in which one G.Rana signed in it for Mehul Agencies (Ex.P4), Oriental Insurance Receipt No.8102 (Ex.P5) and Truck Unloading Report No.525587 (Ex.P6) from A1 on 15.12.1994 at 11.45 A.m at Patel Roadways, Tuticorin.
b) The confession statements of A1 and A2 Ex.P41, Ex.P42, Ex.P48 and Ex.P49 dated 16.12.1994 and 17.12.1994, 18.12.1994 in which they admitted their manufacture of Mandrax tablets at Hari Om Factory at Chikhli, Surat and transport to various states.
c) The seizure of documents in Room No.203 of Pandian Hotel, Madurai which would confirm the staying of the accused in the name of Subbarao on 14.12.1994 and 15.12.1994.
d) The evidence of PW-6, who identified A2 as the person who handed over the invoice and bill at Surat. The photo of A2 is M.O.26.
e) The evidence of PW-13, who has driven the Contessa Car from Madurai, Pandian Hotel to Tuticorin on 15.12.1994 in which the accused travelled identified as the persons who approached him to purchase his factory Alpha Drugs Limited.
g) The seizure of Acetic Anhydride and Paracetamol powder from M/s.Jayalakshmi Chemicals, Salem and the evidences of Pw-20, Pw-21 and Pw-22 would corroborate the evidences of Pw-5, Pw-7, Pw-11, Pw-12 with regard to oral sale agreement entered into between the Rajender Sharma and Anilbhai and Pw-21 and the advance received by them.
h) The non-denial of the accused about their stay in Hotel Pandian in Room No.203 when they were examined under section 313 Cr.P.C.
i) The learned Spl.Public Prosecutor further assailed the defence witnesses and the documents marked through them.
j) The procedure contemplated under section 50 of NDPS Act has been complied with and the same was also mentioned in Ex.P38.
42. On the other hand, Mr.B.Kumar, the learned Senior Counsel appearing for the respondents would strenuously argue that the prosecution has miserably failed to prove its case and therefore the trial court has rightly acquitted the accused.
43. According to the learned senior counsel, the foremost material relied upon by the prosecution is the confession statements of the accused. But, the confession statements are not voluntary and truthful and therefore they are not admissible in evidence. The confession statements of A1 and A2 were recorded on 16.12.1994 and 17.12.1994 and 18.12.1994 when they were under the custody of the customs officers in customs office, Tuticorin. According to them, they were severely beaten up and involuntary statements were recorded from them. The findings of the trial court recorded in that regard are unexceptional.
44. The learned senior counsel for the respondents has prefaced his submissions to show how the statements recorded from A1 and A2 are involuntary and could not be taken into consideration by referring the leading decision of Supreme Court in Sankaria -vs- State of Rajasthan reported in AIR 1978 SC 1248. The Supreme Court stated while considering the confession statement, the statement must satisfy two tests.
(a) if the statement is perfectly voluntary.
(b) if the first test is satisfied on a true reading, it could be considered as truthful. If both tests are satisfied and where the statement is retracted, the court must find if there is corroboration atleast on general particulars. It is only if all the above three test are satisfied the statements could be relied upon against the accused. This decision of the Supreme Court has been quoted and followed in the decision in State (NCT of Delhi) - vs- Navjot Sandhu (Parliament attack case) reported in 2005 SCC (Cr.) 1715. Therefore, the statements of A1 and a2 have to be tested in the light of the above three principles.
45. In the instant case, the customs officers are not police officers. Hence, the confession statement recorded by them is not hit by the prohibition under section 25 of Evidence Act. Nevertheless, the statements have to be tested under section 24 of Evidence Act. The officers being person in authority within the meaning of section 24 of Evidence Act, the burden of establishing that the statements recorded by customs officers are involuntary is on the accused. However, the burden is very light. An accused is only need to show the circumstances from "which it appears to the court" to have been caused by inducement, threat or promise. This aspect is also emphasized by the Supreme Court in Pyare Lal Bhargava -vs- State of Rajesthan reported in AIR 1963 SC 1094 and also in the decision in state (NCT of Delhi) - vs - Navjot Sandhu reported in 2005 SCC (Cr.) 1715. It is stated that "The expression "appears" connotes that the court need not go to the extent of holding that the threat, etc., has in fact been proved. If the facts and circumstances emerging from the evidence adduced makes it reasonably probable that the confession could be the result of threat, inducement or pressure, the court will refrain from acting on such confession even if it be a confession made to a Magistrate or a person other than a police officer". Another decision is Sevantilal Karsondas Modi -vs- State of Maharashtra reported in AIR 1979 SC 705 on the same point.
46. The evidence in this case has to be viewed in the light of the above position of law. The Sessions Court while arriving at its conclusion that the statements of A1 and A2 are involuntary is well supported by circumstances as well as the evidences given by the defence witnesses.
47. It is also contended by the learned senior counsel for the respondents/accused that while recording a statement of confession in nature under section 164 Cr.P.C., by a Magistrate, the code itself provides series of safeguards. However, there is no safeguard while recording a statement under NDPS Act by the Officers of customs. Therefore, according to him, the statements require to be "closely scrutinised" whether it was voluntarily obtained or not. In a decision of Supreme Court in Francis Stanley @ Stalin -vs- Intelligence Officer, NCB, Tiruvanathapuram reported in 2007 (2) SCC (Cr.) 618 in paragraph 15, it is held that "while it is true that a confession made before an officer of the department of Revenue Intelligence under the NDPS Act may not be hit by section 25 in view of the aforesaid decisions, yet such a confession must be subject to closer scrutiny than a confession made to private citizens or officials who do not have investigating powers, under the Act." This decision is followed in Mohtesham Mohd. Ismail -vs- Spl.Director, Enforcement Directorate reported in 2007 (8) SCC 254. There is also force in this submission made by the counsel for the respondent/accused.
48. There is another startling feature in this case. PW-1 in his cross examination has accepted that two further statements of A1 and A2 were recorded on 04.01.1995 and 12.01.1995 in Central Prison, Madurai and in that both the accused totally denied their involvement in the alleged seizure of Mandrax tablets in seven cylinders at Patel Roadways, Tuticorin. The criticism by the Sessions Court that the prosecution has suppressed these two materials and not marked them in court is also justifiable.
49. The learned Senior Counsel for the respondents in supporting the judgement of the trial court has emphasised the following aspects to show that the statements recorded from the accused are involuntary and have to be eschewed from consideration. A1 and A2 were cited as accused in four cases in C.C.No.113/95, C.C.No.417/95, C.C.No.325/95 and C.C. No.562/98 and both of them were implicated in the cases on the basis of their apprehension on 15.12.1994 at Patel Roadways, Tuticorin and the seizure of documents under Mahazar. For the purpose of convenience and for better appreciation of evidence, it is to be mentioned here that Gnanasekar, Superintendent of Customs, Tuticorin who was instrumental in apprehending A1 and A2 at Patel Roadways, Tuticorin has been examined as PW-1 in C.C.No.113/95 (C.A. 712/99), as PW-21 in C.C. No.417/95 (C.A. 844/99), as PW-2 in C.C. No.325/95 (C.A. 976/99) and as PW-4 in C.C.No.562/98 (C.A.985/99) and he has spoken about the seizure of documents under Mahazar which was marked as Ex.P.24 in C.C. No.113/95 and as Ex.P42 in C.C. No.325/95. The statements of A1 and A2 recorded by Gnanasekar on 16.12.1994 was marked as Exs.P41 and 42 in C.C. No.113/95, as Exs.P90 and 89 in C.C. No.417/95 and as Ex.P37, 38, in C.C. No.562/98. The statements of A1 and A2 dated 17.12.1994 and 18.12.1994 were marked as Exs.P.48 and 49 in C.C. No. 113/95, as Exs.P92 and 91 in C.C.No.417/95, as Exs.P.46 and 47 in C.C. No.325/95 and as Exs.P.41 and 43 in C.C. No.562/98. Thirugnanasundaram, Customs Inspector, Tuticorin who assisted Gnanasekar was examined as PW-30 in C.C. No.113/95 and as PW-16 in C.C. No.325/95. Firstly A1 and A2 have been kept under illegal confinement for over 4 days. It is the case of the prosecution itself that A1 and A2 were apprehended at Patel Roadways at 11.45 a.m on 15.12.1994. They were taken to the Customs Office and kept there in the night. Infact seizure Ex.P24 Mahazar was signed by A1 and A2 on the night of 15.12.1994. Both Pw-1 Superintendent of Customs and another officer of customs Pw-30 both admitted in evidence that the accused were in their custody from 15.12.1994 till they were produced for the purpose of remand on 19.12.1994. There was no explanation, nor could there be any for the prolonged confinement of A1 and A2 in the customs office at Tuticorin. This is more so, when no summons has been issued either under NDPS Act or under customs Act for their appearance before the customs authorities. The three statements from each of the accused were written when they were under such patently illegal custody. The contention that statements of the accused are therefore stamped with involuntariness has force and acceptability.
50. Secondly, there is inherent material to show that the accused were subjected to prolonged interrogation that too in the night time. In both Exs.P48 and 49 which are said to have been recorded on 17.12.1994. The statement begins on 17.12.1994 and ends on 18.12.1994. These dates are mentioned in the statements itself. The prosecution witness Pw-1 & Pw-30 have also accepted the same. It was contended before me that the only logical inference is, the accused were continuously interrogated during night time and statements were recorded. In this regard, serious reliance was placed in the judgments of the constitution bench of the Supreme Court in Kartar Sing - vs- St.of Punjab, reported in 1994(2) JT SC 423 in paragraph 419. The said judgment was followed by A.Packiraj,J., in an unreported judgement of this court in Criminal Appeal No.139/95 dated 26.09.2001. Though the judgment of the Supreme Court on the safe guards to be observed while recording confession statements was in the context of interpreting section 15 of TADA, they are also of general observation where statements of confession in nature are recorded by the officials who are not police officers. The Supreme Court has observed in para 149 that "Equally it is settled law that confession would not be recorded during nighttime or late hours after the accused has been subjected to interrogation by the police officers for 3 or 4 hours and had broken down under the continued interrogation". Thus, the judgments cited on behalf of the respondents clearly apply to the facts of this case. Thirdly, the accused have more than probablised that they were subjected to ill-treatment and were subjected to serious coercion which have no sanction of law. The evidence of Pw-20 in C.C.No.113/95 is relevant in this respect. It is an admitted case that only three persons were taken to the office of customs on 15.12.1994. They were A1, A2 & Pw20. Pw-20 was kept for four days in one room of the customs office while A1 and A2 were kept in the next room and he has deposed that he heard screaming noise. Since, no other person than A1 and A2 were brought for the purpose of interrogation, the screaming noise could have come only from A1 and A2. Though Pw-20 was treated as hostile in C.C. No.113/95, his evidence was not disputed by the prosecution.
51. In this regard, the learned senior counsel also relied on the evidences of Dw1, the Assistant Prison Officer, Central prison, Madurai and Dw2, the prison doctor who has treated the accused from 22.12.1994 to 02.01.1995 in the jail hospital as in-patients. Ex.D1 to Ex.D6 were also marked to prove the injuries and pain found on the accused at the time of their admission in Central prison, Madurai and also their treatment taken there from 22.12.1994 to 02.01.1995.
52. This aspect is probablise nay even establish by the evidence of Dw1 and Dw2 and production of Ex.D1 to Ex.D6. These materials were produced to show that they had physical injuries upon them at the time of remand which are not explainable except on the hypothesis that they were caused when they were under the custody of the customs officers.
53. The analysis of evidence of Dw1 and Dw2 in this regard and notings in the jail records that the accused had contusions on their body and could have been caused when they were in the custody of customs offices clearly go to show that the accused had been coerced to give confession statements. Therefore, the findings recorded by Sessions Court cannot be said to be in any way unacceptable or wrong.
54. The learned special public prosecutor has contended that Dw1 and Dw2 were not reliable witnesses and they have given false evidence in order to support the accused. He further contended that the note Ex.D2 in Ex.D1 was written in a different ink after the original writing was erased. He further contended that Dw2 has given treatment to the accused from 22.12.1994 onwards only and therefore the injuries might have been caused by some other source and not because of the beating of the officers as alleged by the accused. However, it is very pertinent to mention here, that Pw1 in his evidence admitted that after the accused were remanded on 19.12.1994, custody was sought for by filing petition and three days custody was ordered by the Court. He has not mentioned the date of the petition and the date of the order. But the fact is that the accused were remanded on 19.1.21994 and the first fifteen days expired on 02.01.1995. After that, the customs officers could not seek custody of the accused. As per the jail records Ex.D4 and Ex.D6, the accused were in jail hospital as in patients from 22.12.1994 to 02.01.1995. Therefore, it is quite evident that the accused ought to have been taken custody on 20th December 1994 and reproduced before court on 22.12.1994 after the three days custody period was complete. It is the duty of the prosecution to prove that the accused were inside the prison on 20.12.1994 and 21.12.1994 also by letting evidence.
55. In this regard, the argument of the learned Special Public Prosecutor requires to be considered. According to him, the deposition of Dw1, Assistant Prison Officer, Central Prison, Madurai and Dw2, the doctor attached to the jail are not acceptable and the jail records are not reliable due to overwriting. It is submitted that the entry Ex.D2 in Ex.D1 appears to be over writing and in different ink and therefore, it has been brought much later. Secondly it was contended that even though jail authority has noted physical injuries like contusions found on the accused at the time they were admitted to prison after remand, the jail doctor examined them only 3 days later, that is, on 22.12.1994, hence defence witness are not to be accepted.
56. But, on a careful consideration of the documents and the evidence of Dw1 and Dw2, this Court finds that the contention of the learned special public prosecutor cannot be accepted. Both Dw1 and Dw2 are Government Servants. The entries made were in the course of official duties and in a regularly kept register. That the entry Ex.D2 is in different ink and therefore it must be a later addition, made much later is also not acceptable since the entries are made at different times. Entries are made as and when the prisoners are admitted in jail and the entry will be made whoever was in prison during the job at that particular time. Hence, difference in the colour of the ink could not be a factor to discredit Ex.D2 in Ex.D1. The counsel for the accused has explained that after remand they were taken into customs custody on the following morning for 3 days and that is why after they came back to prison at the end of police custody, the doctor examined them on 22.12.1994. Moreover, if the writings are disputed, it is the prosecution which could have sent it for scientific analysis by an expert. But the same was not done. The injuries noted are all shown to have been caused when the accused were in the custody of customs authorities for a period of 4 days. This circumstance taken together with other circumstances pointed out, have been relied upon by the Sessions Court to come to the conclusion that the statements of confessional nature recorded for A1 and A2 in Ex.P41, 42, 48 and 49 as involuntary and therefore require to be eschewed entirely is proper and correct conclusion.
57. The learned senior counsel for the respondents also contended that Pw-1 admitted in his cross examination that photographs of A1 and A2 were taken while they were in their custody. However, the photographs were not produced before the court. It is the contention of the learned senior counsel for the respondents that A1 and A2 were severely beaten up particularly at the foot, that they were unable to stand and they were made to lean against the wall and photos were taken. Because of this reason, the officers have not produced the photos to the court and therefore adverse inference should be drawn against the prosecution. After going through the evidence of Pw1 and Dw1 and Dw2 and considering the other circumstances mentioned above, the contention of the defence counsel appears to be acceptable.
58. The learned senior counsel appearing for the respondents/accused has also relied upon the judgment of the trial court by showing that there is a clear violation of mandatory requirements of section 50. The law on the point of effect of non compliance of section 50 is no longer rest integra. If there is a failure to appraise to a suspect that he has a right under the Act to insist that the search should be made before Magistrate or Gazatted Officer, the search would be invalid and the investigation and trial would get vitiated. The decision cited by the counsel are (i) State of Punjab -vs-Balbir Singh reported in JT 1994 (2) SC 108. This decision was affirmed by the Constitution Bench of Supreme Court in The State of Punjab -vs- Baldev Sing reported in JT 1999 (4) SC
595.
59. The requirement to comply with section 50 would arise only in the case of "personal search". Was there a personal search of the accused in this case requiring the compliance of section 50 has therefore to be considered.
60. According to the prosecution and Pw-1 three persons namely, A1, A2 and Pw-20 entered Patel Roadways, Tuticorin on 15.12.1994 at 11.45 a.m. Pw-16, the Deputy Manager, Patel Roadways who has also signed in the Mahazar Ex.P24 in his evidence said that the documents Ex.P20 to Ex.P23 were recovered from the trouser pockets and suitcase of the accused. Pw-16 has not been treated hostile. One Johnson, one of the persons signed in Ex.P24 was examined in C.C. No.325/95 and he has also stated in his evidence that the documents were recovered from the trouser pockets and suitcase. He was not treated hostile on this point. Thus, there was personal search of the accused and only as a result of it, the incriminating documents were seized. Pw-1 admitted in his evidence that he did not inform the accused about the rights under Section 50. The seizure Mahazar Ex.P24 also does not say that section 50 was complied with. Hence, there is a stark violation of the mandatory provision of Section 50. The consequence envisaged by the Constitution Bench in the decision in Baldev Singh's case must therefore follow.
61. The evidence of Pw-1 is that both the accused were later taken to the Customs Office, Tuticorin and there was subsequent Mahazar proceedings and according to his evidence, it is at that time at 3.00 p.m. on 15.12.1994 they complied with section 50. This is irrelevant because the alleged documents Ex.P20 to Ex.P23 were seized at 11.45 a.m. on 15.12.1994 at Patel Roadways are primarily relied upon against the accused and therefore on this non-compliance of the mandatory provision of Section 50 of NDPS Act itself, the acquittal of the accused by the trial court is to be sustained.
62. The next contention of the defence counsel is that the prosecution has not established that the accused are connected with the consignor Mehal Agencies, Surat or the Hari Om Factory at Chikhli, Surat, Gujarat. The seizure of documents Ex.P20 to Ex.P23 under Mahazar Ex.P24 itself is challenged as highly doubtful. It is the case of the prosecution that on 12.12.1994, 7 cylinders were seized from Patel Roadways Office and from then onwards, as per the evidence of Pw-1 they kept surveillance over Patel Roadways till 15.12.1994, till three persons entered the Patel Roadways Office, Tuticorin at 11.45 a.m., But, it is contended by the defence counsel that
(a) No surveillance report was filed by Pw-1.
(b) Pw-1 could not have been present at the time of entry of A1, A2 and Pw-20 into Patel Roadways Office, Tuticorin on 15.12.1994 at 11.45 a.m., because, Pw1 has examined Pw-14, Paul Pandian and Saveria Pitchai on 15.12.1994 and their statements were also recorded in the customs office. It is not possible for Pw- 1 to be present in two places at the same time.
(c) Ex.P39 is the report of Pw-1, under section 57 and the wordings found are ?."while the officers of customs were keeping surveillance they noticed".If really Pw-1 kept surveillance along with other officers, the reading would be that "while we were keeping surveillance we noticed" Therefore, the report appears to be in the language of a third person and consequently, the contemporaneous document would establish that Pw-1 was not present on 15.12.1994 at 11.45 a.m. in Patel Roadways Office, Tuticorin.
(d) There is no explanation from Pw-1 how he got suspicious of A1 and A2 even before they entered the office at 11.45 a.m. on 15.12.1994.
(e) Taking two independent witnesses along with other officers on 15.12.1994 at 11.45 a.m. unbelievable because after three persons entered Patel Roadways Office, it is stated by Pw-1 and Pw-30 that they took the independent witnesses along with them to Patel Roadways, and there is no explanation how they knew three persons would come on 15.12.1994 at 11.45 a.m.
(f) In this regard, the evidence of Pw-13, to prove the fact that the accused and Pw-20 travelled in his car from Madurai to Tuticorin is some what doubtful because he never said that he has seen the three persons who entered the Patel Roadways Office. He has stated that at about 12.30 p.m. to 1.00 p.m. the three persons got down from his car whereas the prosecution case itself is at 11.45 a.m., the accused along with Pw-20 entered the Patel Roadways Office. Further, no trip sheet was seized from Pw-13 even though trip sheet was seen by the customs officers as per the evidence of Pw-13. It is quite unbelievable that Pw-13 was not asked to identify the accused in the Patel Roadways or in the Customs Office, Tuticorin. If really Pw-13 was waiting outside Patel Roadways, he would have been asked to identify the accused there itself. It was not done. Therefore, the genuineness of this witness is very much doubtful and unacceptable. There is no explanation from the prosecution side with regard to the above contentions of the defence side.
63. The evidence of the prosecution that A1 and A2 stayed in Pandian Hotel, Madurai in Room No.203 under the assumed name Subbarao on 14.12.1994 and 15.12.1994 is also highly discrepant. Ex.P99 to Ex.P110 are the documents of Pandian Hotel, Madurai. This was countered by the defence counsel by pointing out that Ex.P99 is the occupancy list of Pandian Hotel. In that, it is mentioned one Subbarao arrived on 15.12.1994 at 7.20 a.m. and occupied room No.203. Ex.P100 and Ex.P101 mentioned the number of person stayed in room No.203 is one. This document conclusively negatives the prosecution case that both the accused A1 and A2 stayed in the room 203.
64. Further, the signatures in Ex.P99 to Ex.P110 were also not sent for expert opinion to find out whether signatures tallied with the handwritings of the accused. Therefore, the contention of the prosecution that Ex.P99 to Ex.P110 would prove staying of the accused in Room No.203 of Pandian Hotel, Madurai from 14.12.1994 and they came to Tuticorin from Madurai are also not established. Moreover, Pw4 is the receptionist of Pandian Hotel who failed to identify the accused as the persons stayed in his hotel in the name of Subbarao. Entry in the hotel Register have not been proved and is not admissible in evidence. The learned Senior Counsel for the accused relied upon the Supreme Court decision in Pawan Kumar -vs-state of Haryana reported in 2004 SCC. (Cr.)109 to the principle that entry in the Register having not been legally proved is not admissible in evidence. At this juncture, it is argued by the special public prosecutor that it was not denied by the accused in their section 313 questioning that they never stayed in room No.203. However, the answer to question No.21 is "we stayed in the Hotel for a short while for half an hour in our names." This would amply show that the accused stayed in their own names and not in the name of Subbarao. Therefore, it was upto the prosecution to prove in which room, the accused stayed in their own names. Therefore, Ex.P99 to Ex.P110 will not support the prosecution case with regard to staying of the accused in room No.203 on 14.12.1994 and 15.12.1994. Pw20, Palaniappan who is said to have travelled along with A1 and A2 also did not support the prosecution case with regard to staying of the accused in Room no.203 of Pandian Hotel, Madurai.
65. The evidence of Pw-6 Driver of the lorry is strongly relied upon by the prosecution because he only identified A2 as the person who has handed over the bill and invoice at Surat on 24.10.1994. However, no identification parade was conducted and the photograph of A2 was shown to Pw6 and he signed on it (M.O.26) which is not admissible in evidence. Further, Pw6 did not produce Lorry rent receipt and lorry log book to prove that he was the driver of the lorry who has driven it from Surat to Tuticorin on 24.10.1994 with the 7 cylinders.
66. Similarly, the evidence of Pw-10 is strongly relied upon by the prosecution to prove that A1 and A2 came to his factory Alpha Drugs Ltd., and negotiated with him to purchase his factory and paid the advance amount to him. He identified A1 and A2 as the persons met him. But the photographs were already shown to him when he handed over the advance amount to the customs officers on 16.01.1995. It is quite unnatural to believe that no sale agreement was entered into at the time of giving the advance amount and no time limit was fixed to pay the balance amount. Therefore, Pw-10 is also not helpful for the prosecution to prove that A1 and A2 are Rajender Sharma and Anilbhai. The learned Senior Counsel has relied upon a Supreme Court decision in D.Gopalakrishnan - vs- Sudanand Naik reported in AIR 2004 SC. 4965 wherein it has been held that if the witness had given the identifying features of the assailants during the course of the investigation, the same could be confirmed by the investigating officer by showing the photographs of the suspect and the investigating officer shall not show a single photograph but should show more than one photograph of the same person." The identity of A1 and A2 as Rajinder Sharma and Anil Bhai is also not established.
67. The above aspects have relevance when considering the prosecution case of alleged attempt of the accused to purchase Jayalakshmi Chemicals, Salem. There is no material to connect A1 and A2 with Jayalakshmi Chemicals from which Acetic Anhydride and paracetamol were seized. Pw-20, Pw-21 and Pw-22 are the concerned witnesses to speak about Rajender Sharma and Anilbhai and their payment of advance for the purchase of Jayalakshmi Chemicals. However, all the three did not identify A1 and A2 as the persons who approached them earlier to purchase Jayalakshmi Chemicals. Therefore, the prosecution has not proved its case to connect A1 and A2 with Jayalakshmi Chemicals and therefore no charge could be established against A1 and A2 for the possession of Acetic Anhydride in the Jayalakshmi Chemicals and rightly the trial court acquitted the respondents from the charge of violation of section 9-A of the NDPS Act and as such they are not liable to be punished under section 25-A of NDPS Act. It may also be mentioned that even according to prosecution, A1 and A2 had attempted to purchase the factory. But nothing was concluded. Hence, merely because Acetic Anhydride which is a controlled substance found in the factory, the same will not amount to the possession of the same by the accused. It is also significant that Pw20, 21 and Pw22 who were admittedly incharge and running the factory have not been made as accused.
68. The learned Special Judge has framed several charges and one of the charges was that A2 has admitted that he manufactured Mandrax tablets and for that A2 has collected the formula along with A1 for the manufacture of Mandrax tablets at their factory M/s.Hari Om Engineer, Chikli and thus conspired along with persons known to them to manufacture, transport, export inter-state sell the Mandrax tablets (Methaqualone) a physchotropic substance and as such they were liable to be punishable under section 29 of the NDPS Act. But, in this case except relying upon the statements recorded from the accused, no material is produced to show there existed a manufacturing unit Hari Om Engineer at Chikli, Surat, Gujarat. The statements Ex.P41, 42, 48 & 49 have already been discredited. Hence, there is no material to support the charge of manufacture of Mandrax tablet at Hari om Engineer, Chikli. Nor, is any material evidence given to connect the accused with the said unit at Chikli. These cases were tried simultaneously and separate judgments were given. This aspect had been dealt with fully while disposing of the C.A. No. 844/99 filed against C.C.No.417/95. It is not repeated herein for the sake of brevity.
70. This being an appeal against acquittal, unless the findings of the trial court are perverse, highly unreasonable, based on no evidence on record or made in ignorance of relevant evidence on record, this court is not inclined to interfere with the findings of the trial court and will not set aside the order of acquittal.
71. For the reasons stated above, I do not find any ground to interfere with the well considered findings of the Sessions Court. Therefore, the judgment of the trial court in acquitting the accused of all the charges is sustained. In the result, this Criminal Appeal is dismissed confirming the judgement dated 28.5.1999 on the file of the Special District and Sessions Judge, Madurai, in S.C.No.113 of 1995. The M.Os.12 to 15 are directed to be returned to A.2 and M.Os.16 to 25 are directed to be returned to A.2, which are personal belongings of A.1 and A.2. The other material objects concerned in this case shall be confiscated by the Government after the Appeal period is over or Appeal if any is over.
gkv Copy to:
1. The Spl.District and Sessions Judge (NDPS Act Cases) Madurai.
2. The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.