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These appeals have common matrix in the judgment in S.C.No.40 of 2008 (NDPS) passed by the Court of Special Judge (NDPS Act Cases), Vatakara whereby and whereunder the appellants who were respectively accused Nos.2 and 3 therein, were found guilty, convicted and sentenced as hereunder:-

To undergo rigorous imprisonment for 10 years each and to pay a fine of 1,00,000/- each and in default of payment of fine to undergo rigorous imprisonment for one year each, for the conviction under Section 29 read with Section 21(C) of the Narcotic Drugs and Psychotropic Substances Act (for short `NDPS Act'). For the conviction under Section 8A(C) read with Section 21(C) of the NDPS Act they were sentenced to undergo rigorous imprisonment for 10 years each and to pay a fine of 1,00,000/- each and in default of payment of fine to undergo rigorous imprisonment for one year each. They were sentenced to undergo rigorous imprisonment for 10 years each and to pay a fine of 1,00,000/- each and in default of payment of fine to undergo rigorous imprisonment for one year each for the conviction under Section 27A of the NDPS Act and also sentenced to undergo rigorous imprisonment for 10 years each and to pay a fine of 1,00,000/- each and in default of payment of fine to undergo rigorous imprisonment for one year each for the conviction under Section 28 read with Section 21(C) of the NDPS Act. The substantive sentences of imprisonment were ordered to be run concurrently. They were also held entitled to get set off under Section 428 of the Code of Criminal Procedure. The former appeal has been filed by the 2nd accused and the latter appeal has been filed by the 3rd accused in the above mentioned sessions case. In fact, the appellant in the former appeal was the 6th accused in S.C.No.29 of 2008 (NDPS) arising from OR 1/2008 of the Directorate of Revenue Intelligence, Regional Unit, Calicut. The 4th accused therein viz., Chottu who was the first accused in S.C.No.40 of 2008(NDPS) and the appellant in the former appeal were absconding during the trial of S.C.No.29 of 2008(NDPS) and consequently, the case against them was split up and refiled as S.C.No.40 of 2008(NDPS). Later, the Investigating Officer filed a further investigation report arraigning the appellant in the latter appeal also as an accused in the aforementioned OR and consequently, he was arrayed as the 3rd accused in S.C.No.40 of 2008(NDPS). Even during the trial of S.C.No.40 of 2008 (NDPS) the first accused who was the 4th accused in S.C.No.29 of 2008 (NDPS) remained in abscondence. It is to be noted that all the accused, except the 5th accused, who stood the trial in S.C.No.29 of 2008(NDPS) were convicted for the same offences mentioned above as per judgment dated 7.4.2009.

2. A brief narration of facts is inevitable for the disposal of the captioned appeals. The case of the prosecution is that on 25.3.2008 at 8.30 a.m. PW1 who was then working as Senior Intelligence Officer in the Directorate of Revenue Intelligence, Cochin received Ext.P1 secret information to the effect that one Habeeb Rahman @ Kunchappu (A1 in SC.No.29/2008(NDPS)) used to obtain Heroin from Rajasthan for export and at that point of time he was in possession of around 11 Kgs. of Heroin concealed in two places viz., in the house by name "Homeo Bhavan" abutting Puthiyara road at Kuthiravattam and in the residence of his uncle Muhammed Kunchi in front of the house of Habeeb Rahman at Edavannapara. On obtaining the said secret information, PW1 informed the same to his immediate superior who after acknowledging the same issued Ext.P2 search warrant for further action. Thereupon, PW1, searched the premises of `Homeo Bhavan' belonging to PW2 and recovered 5.178 Kgs. of Heroin. Based on the same information a simultaneous search was conducted by CW10 Radhesh who was the then Intelligence Officer attached to Directorate of Revenue Intelligence, Cochin Office and upon such search 6.218 Kgs. of Heroin was recovered from the second place of concealment at Edavannapara. On instructions, PW1 searched Room No.301 of Hotel Malabar Palace and intercepted the 2nd and 3rd accused in S.C.No.29 of 2008(NDPS) from there. He recovered a flight ticket and currency notes worth 43,000/- from the said room. Accused Nos.1 to 3 in S.C.No.29 of 2008(NDPS) and the material objects were handed over to PW3, the Investigating Officer who was then working as Senior Intelligence Officer, Directorate of Revenue Intelligence, Regional Unit, Calicut. PW3 recorded the statements of accused Nos.1 to 3 in S.C.No.29 of 2008(NDPS) under Section 67 of the NDPS Act on the next day and arrested the accused. The further investigation led to the recovery of two cars from the premises of `Homeo Bhavan'. On inspection of one of the cars PW3 detected Ext.P10 paper slips carrying certain scribbling. Investigation based on the paper slips revealed the fact that the first accused in S.C.No.29 of 2008 effected two deposits in the Calicut Branch of ICICI Bank as evidenced by Exts.P13 and P14. The first among the deposits was effected on 31.01.2008 of 2,00,000/- and the second one effected on 3.3.2008 was of 4,00,000/-. The said deposits were effected in favour of the 6th accused/the appellant in the former appeal viz., the 2nd accused in S.C.No.40 of 2008(NDPS), in his account maintained with ICICI Bank at Chandigarh. PW3 completed the investigation and filed the complaint as against accused Nos.1 to 6 which was, taken on file and numbered as S.C.No.29 of 2008(NDPS). As stated earlier, among the six accused therein the 4th accused and the 6th accused viz., first and the second accused in S.C.No.40 of 2008(NDPS) did not stand the trial and they remained in abscondence. Ext.P22 judgment was rendered in respect of the accused who stood the trial. The case against the appellant in the former appeal and the 4th accused in S.C.No.29 of 2008(NDPS) was then refiled as S.C.No.40 of 2008(NDPS) and during its pendency a further investigation report was filed arraigning Naresh Kumar Garg (the appellant in the latter appeal) also as an accused. In the meanwhile, the accused in S.C.No.29 of 2008(NDPS) approached the Hon'ble Apex Court on being aggrieved by Ext.P22 judgment and to enable the trial of the appellants herein certified copies of the records were issued from the Hon'ble Apex Court and such documents are marked in the trial of the appellants herein in S.C.No.40 of 2008(NDPS). To bring home the charge against the appellants the prosecution has examined PWs 1 to 10 and got marked Exts.P1 to P45 besides identifying MOs I to XIV. Upon closure of the evidence of the prosecution the appellants herein were examined under Section 313 Cr.P.C. They denied all the incriminating circumstances put to them. Additionally they filed separate statements. Finding that they were not entitled to be acquitted under Section 232, Cr.P.C. the appellants herein were called upon to enter on their defence. Consequently, they got examined DW1 and also marked Exts.D1 to D9 series. After considering the arguments advanced by both sides and appreciating the evidence on record the learned Special Judge held that the prosecution has succeeded in proving all the alleged offences against the appellants herein. Consequently, they were found guilty on all counts and convicted and sentenced as mentioned above. For convenient sake the appellants are referred to hereafter in this judgment in accordance with their status in the array of accused in S.C.No.40 of 2008(NDPS) unless otherwise specifically mentioned.

3. I have heard the learned Senior Counsel Sri.Vikram Choudhary for the 2nd accused/the appellant in the former appeal and Senior Counsel Sri.Raman Pillai for the 3rd accused/the appellant in the latter appeal and also the learned Special Public Prosecutor Sri.C.P.Udayabhanu for the Directorate of Revenue Intelligence.

4. The appellants raised manifold contentions to mount challenge against the judgment of conviction and mainly it is contended that it is the utter, perverse appreciation of evidence that led to their conviction. The learned Senior Counsel Sri.Vikram Choudhary appearing for the 2nd accused/the appellant in the former appeal contended that the mere fact that the first accused in S.C.No.29 of 2008(NDPS) (Habeeb Rahman @ Kunchappu) made twin deposits in account No. 632205006014 maintained by the appellant respectively on 31.1.2008 and 3.3.2008 for a total amount of 6,00,000/-, is too inconclusive to connect the appellant with the commission of the alleged offence and, according to the learned counsel for connecting them with the offence it should have been proved by the prosecution that those payments were made in connection with narcotic business allegedly involved in this case. It is contended that the case of the prosecution against the 2nd accused is distinctly different from the precise case of the prosecution against accused Nos.1 to 3 in S.C.No.29 of 2008(NDPS). The case of the prosecution against accused Nos.1 to 3 in S.C.No.29 of 2008(NDPS) was that the first accused was found in possession of heroin and 2nd and 3rd accused therein were the persons who brought the contraband articles from Rajasthan. On the other hand, the case against the 2nd accused is that he had conspired with Habeeb Rahman (the first accused in S.C.No.29 of 2008(NDPS) and Chottu (4th accused in S.C.No.29 of 2008 (NDPS)/the first accused in S.C.No.40 of 2008(NDPS) and financed for the narcotic business and appropriated the amount derived out of such narcotic substance trafficking. The foundation for such accusation, according to the learned counsel, is the alleged statement of Habeeb Rahman to the effect that he had deposited 2,00,000/- on 31.1.2008 and 4,00,000/- on 3.3.2008 respectively in a particular bank account maintained by the 2nd accused. It is the contention that though the 2nd accused had explained that the amount was deposited at the instance of one Naresh Kumar Garg in connection with his established liquor business without conducting a proper investigation to find out the verity of the same the 2nd accused was falsely implicated in the case. The learned counsel further submits that it was so done owing to the animosity entertained by the Directorate of Revenue Intelligence Officials against the 2nd accused. It is the contention that the statement of Habeeb Rahman given under Section 67 of the NDPS Act to connect the 2nd accused, the appellant in the former appeal with the alleged offences ought not to have been treated as an incriminating material against the 2nd accused. According to the appellant in the former appeal, the court below had failed to properly appreciate the purport and impact of Section 30 of the Evidence Act. The trial Court had erred in placing reliance on the alleged confession statement of Habeeb Rahman who faced trial in S.C.No.29 of 2008. The said procedure adopted by the trial Court is illegal. It is further contended that apart from the said statement there was absolutely no material on record to connect the 2nd accused, the appellant in the former appeal with the alleged offence. It is further contended that the admission of Naresh Malhothra that he used to work as an agent and deal with many customers on behalf of the appellant in the former appeal in Ext.P19 statement was not properly appreciated by the court below. It is the further contention that the court below had failed to take into account the fact that the appellant did not even have nodding acquaintance with Habeeb Rahman or Chottu. The evidence of PW6, the Branch Manager of ICICI Bank, Calicut revealing that for depositing cash in current account from an outstation branch no specific procedure was there and that without the consent of the account holder anybody could deposit money in any current account, was also not taken into account by the court below, it is submitted. It is further contended that the evidence of PW6 would reveal that normally, an account holder would not become aware of cash deposits in his account till the receipt of the communication in that regard through SMS, E-Mail or statements of accounts and also that there was no procedure prevalent in the Bank to take consent or prior permission of the account holder for the deposit in any current account. The essence of the contentions is that in the light of the evidence of PW6 the mere fact that Habeeb Rahman made two deposits in the account of the appellant could not have been the basis for drawing an inference that the appellant was either a privy or a party to any shady narcotic business. The learned Senior Counsel further contended that the investigating agency has conducted only a defective and improper perfunctory investigation and that the irregularities and illegalities in the investigation have caused great prejudice to the 2nd accused, the appellant in the former appeal. It is contended that despite Ext.P19 statement from Naresh Malhothra, as aforementioned, no effort was taken by the investigating agency to verify the verity of such statements which if found true would have exculpated the 2nd accused. It is also the contention of the 2nd accused that PW3, the Investigating Officer did not verify his antecedents or verify his business details, accounts, tax returns, turn-overs, mode and manner of business transactions, the liquor licence etc. It is the further contention that the evidence of DW1 was not properly considered by the trial court. DW1 would depose that the 2nd accused got requisite licences issued by the Excise Department to sell liquor. It is contended that since the price of liquor was very cheap in Chandigarh compared to the other parts of the country customers used to come from different parts of the country to Chandigarh to purchase liquor and payments in certain circumstances were, used to be made in advance and such payments may be made from anywhere in the country. In short, according to the appellant, apart from the statement of the aforesaid Habeeb Rahman, the first accused in S.C.No.29 of 2008(NDPS) and the fact that he had effected deposits in the current account of the 2nd accused, the appellant in the former appeal no evidence whatsoever was adduced by the prosecution to establish the conspiracy or the fact that he was financially indulging and benefiting from the narcotic business. It is further contended that the principal accused Chottu at whose instance Habeeb Rahman had allegedly made the aforementioned twin deposits in the Bank account of the appellant was not arrested or even traced out. According to him, Chottu is an illusory and imaginary character. In short, according to the appellant in the former appeal the prosecution had failed to establish any link or connecting evidence as against the appellant, with the shady narcotic business. The contention of the said appellant is that there was a strong motive for the complainant to falsely implicate him in the case and despite highlighting such factors they were not given due consideration by the trial court. His case is that earlier Crime No.253 of 2008 was registered against him at Okkal Police Station at Chandigarh at the instance of PW1, alleging kidnapping of DRI officials. The case against him, according to the appellant in the former appeal, was that on 24.4.2008, PW1 along with two other officers came to his house and asked him to accompany them to the Central Excise Office, Chandigarh and while they were proceeding to the said office his son and his son's friend intercepted them and facilitated the appellant to escape from the custody in another car. One of the DRI official was also taken in the car for long time. It was in connection with the said incident that PW1 lodged a complaint before the local Police Station at Chandigarh and consequently, Crime No.253 of 2008 was registered against the appellant, his son and his friend for abduction and obstruction of the official duty of the DRI officials. The contention is that in view of the alleged incident the DRI officials were nursing strong animosity towards the appellant and that was why he was falsely implicated in this case. It is contended that taking into account all such aspects the trial court ought to have held that the prosecution had failed to establish the guilt of the appellant in the former appeal and he ought to have been acquitted.

5. The learned Senior Counsel appearing for the appellant in the latter appeal contended that there was absolute absence of any material to connect the said appellant who was accused No.3 in S.C.No.40 of 2008, with the alleged offences. It is contended that the appellant in the latter appeal was not an accused in S.C.No.29 of 2008 (NDPS). After the splitting up of the said case in respect of Chottu (A1) and the appellant in the former appeal (A2) in the said split up case viz., S.C.No.40 of 2008(NDPS) he was arraigned as an accused only based on the report on further investigation on 25.7.2011 viz., three years and four months since the seizure and after three years of the complaint in S.C.No.29 of 2008(NDPS) and two years and four months after the judgment in S.C.No.29 of 2008(NDPS). It is contended that a perusal of the impugned judgment would reveal that at one stage the court below had also lost track of the identity of the appellant and the said fact is evident from paragraph 46 of the judgment where the trial court named accused No.3 therein as Naresh Kumar Malhothra. In the said paragraph the evidence against the appellant was discussed under the caption "A3 Naresh Kumar Malhothra's Role" though the name of accused No.3 is Naresh Kumar Garg. It is the specific contention that there is absolutely no reference about the involvement of the said appellant in any of the statements given by the accused or the witnesses and in the documents collected by PW3 in S.C.No.29 of 2008(NDPS). It is contended that on 23.12.2011 while the appellant in the latter appeal was returning from USA he was intercepted and arrested by PW3 from Delhi International Airport. It is the further case of the said appellant that PW3 did not take him into custody whilst only served summons from the Airport on 23.3.2011 for his appearance before him on 24.7.2011 at Calicut. On 4.4.2011 Ext.P32 statement was recorded from him and according to the appellant, it is an exculpatory statement in all respects. It is further contended that in Ext.P12 he admitted that being one of the authorised signatories he had issued two cheques for 5,00,000/- each from the account in question maintained by the appellant in the former appeal, on 28.1.2008. The said cheques were issued prior to the alleged remittance by Habeeb Rahman on 31.1.2008 and 3.3.2008. It is contended that those cheques were issued to two distilleries for purchase of Indian Made Foreign Liquor as instructed by accused No.2 in S.C.No.40 of 2008 (NDPS). It is contended that even in the absolute absence of any evidence to connect the said appellant with the alleged offences the trial Court entered the finding of guilty against him solely relying on Ext.P25 statement of accused No.2, the appellant in the former appeal, Ext.P31 viz., his statement, the account details of Rajesh Bardwaj, the appellant in the former appeal and Exts.P12 and P28 letters and also Ext.P29 series of cheques obtained from ICICI Bank, Chandigarh Branch, without properly scanning and understanding their contents. It is contended that the appellant had been in Abkari business and was a licenced dealer of Indian Made Foreign Liquor since 1995. Accused No.2, the appellant in the former appeal was mainly engaged in hotel and construction business and they got close acquaintance from 1996. The appellant in the former appeal entered into the field of Abkari business as a wholesale dealer in Indian Made Foreign Liquor in 2006-2007 and being an experienced person in the field of Abkari business the appellant in the latter appeal was given the authority to do overall supervision of the Indian Made Foreign Liquor business of the second accused including signing of cheques for the smooth conduct of his business. It is the further contention that the fact that he was authorised to operate the bank account of the second accused ought not to have been taken as a reason to enter finding against him in the aforesaid circumstances. It is also the contention that he got nothing to do with the remittance made in the current account of the appellant in the former appeal and he got no knowledge with respect to the source of such credits. According to the said appellant, Exts.P25 and P31 statements which are respectively the statements of the second accused and his own ought not to have been treated as voluntary statements made by them under Section 67 of the NDPS Act. It is contended that the court below ought to have taken into consideration the fact that accused No.2, the appellant in the former appeal was an accused who was arrested and kept under prolonged custody of DRI at the time of recording of Ext.P12. It is further contended that Ext.P25 statement was recorded from the 2nd accused after keeping him under illegal custody for more than 24 hours. It is contended that the court below did not consider the retractions by the accused persons. At any rate, the court below had failed to take note of the fact that in Exts.P25 and P31 there was absolute absence of any confession or any admission of any incriminating fact even remotely connecting the second accused and the appellant in the latter appeal, with the offence of possessing, trafficking, dealing or transporting or financing the business in heroin. It is also contended that the court below had erred in placing reliance on Ext.P19 statement of Naresh Malhothra without examining the said witness and without considering Ext.D1 retraction filed by him in the form of an affidavit. It is contended that DRI officials have taken mutually contradictory stand in respect of recording of the statement under Section 67 of the NDPS Act and in the matter of filing of a further report after the filing of the final report in terms of Section 176(8) Cr.P.C. The learned Special Public Prosecutor resisted the contentions and submitted that the appellants have not made out any ground warranting appellate interference. It is contended that their conviction was the inevitable outcome of proper appreciation of the evidence on record. On the side of the prosecution Exts.P1 to P45 were got marked besides identifying MOs I to XIV. On the side of the appellants Exts.D1 to D9 series were got marked.