IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 19.07.2010 CORAM THE HONOURABLE MR. JUSTICE T.SUDANTHIRAM Criminal Appeal Nos.862/2002 & 268/2003 Crl.A.No.862/2002:- Union of India Rep.by the Intelligence Officer Narcotics Control Bureau Rajaji Bhavan, Besant Nagar, Chennai – 90. .. Appellant/Complainant Vs 1.Kasilingam ..1 Respondent / A1 2.D.Kamalakannan ..2 Respondent / A2 3.Keesulal ..3 Respondent / A3 Crl.A.268/2003:- Keesulal .. Appellant/A-3 Vs State by Intelligence Officer Narcotic Control Bureau, South Zone, Chennai -90 [File No.48/1/1/2001, NCB,Chennai] .. Complainant/Respondent Crl.A.No.268/2003:- Appeal filed under section 374 Cr.P.C., against the Judgment of the learned Special Judge for NDPS Act cases, Chennai in C.C.No.156 of 2001 by his judgment dated 27.05.2002 convicting the appellant under Section 8 (c) r/w Section 21 and 25 of the NDPS Act and sentencing him to undergo R.I. for 10 years and to pay fine of Rs.1,00,000/- in default to undergo RI for one year for the offence u/s.21 of the said Act and sentencing to undergo RI for 10 years and to pay fine of Rs.1,00,000/- in default to undergo RI for one year for the offence u/s 25 of the said act. Crl.A.No.862/2002:- Appeal filed u/s.378 Cr.P.C., to set aside the acquittal of the respondents 1 and 2 of all the charges and the acquittal of the respondent No.3 of the charge u/s.29 of the NDPS Act by the Principal Special Court, NDPS cases, Chennai-104 in CC.No.156/2001 dated 27.05.2002 and convict and sentence them in accordance with law. https://hcservices.ecourts.gov.in/hcservices/ For Appellant in in Crl.A.No.862/2002 and Respondent in Crl.A.No.268/2003 : Mr.R.Dhanapal Raj, Spl.Public Prosecutor For Appellant in Cr.A.No. 268/2003 & R3 in Crl.A. No.862/2002 : Mr.T.K.Sampath for M/s.T.K.Sampath Associates For Respondents 1 & 2 in Crl.A.No.862/2002 :Mr.B.Kumar, Senior Counsel for M/s.R.Rajan COMMON JUDGMENT The appellant in Criminal Appeal No.268 of 2003 is a single accused in C.C.No.156 of 2001 on the file of Special Judge for NDPS Act cases, Chennai. He stands convicted for the offences u/s.8[C] r/w 21, 25, 27, 28, 29 and 30 of NDPS Act with a sentence to undergo 10 years R.I and to pay a fine of Rs.1,00,000/- (Rupees One Lakh only) in default to undergo one year R.I for each of the offence. The sentence of imprisonment is ordered to run concurrently. Aggrieved by the said conviction, the appellant has preferred this Appeal. 2. Totally there were four accused in this case. The Accused No.1, 2 and 4 were acquitted by the trial court. Aggrieved by the said acquittal, the state has preferred the appeal in Criminal Appeal No.862 of 2002. In the said appeal, the Accused No.1, 2 and 3 are shown as respondents. According to the Special Public Prosecutor for NCB cases, the appeal ought to have been preferred against A1, A2 and A4 but by mistakenly, instead of mentioning the name of A4, the name of A3 has been shown as third respondent. Anyhow, the state has preferred an appeal against the acquittal of the Accused No.1 & 2. As the Accused No.4 has not been shown in the appeal preferred by the state, no notice was sent to the Accused No.4. 3. The case of the prosecution in brief is that on 04.04.2001 at about 9.30 a.m., the Intelligence Officer of NCB (PW3) received an information over phone that one Eswarlal of Madhya Pradesh and resident of Thennur, Trichy was indulging in drug trafficking and had transported 15 kgs. of heroin from Madhya Pradesh to Chennai in Lorry bearing No.RSE 4786 and the lorry is to be parked near M/s.Sarath Enterprises, Bharat Petroleum at 496, Bangalore High Road, Nazarathpet Post, Chennai between 1.00 p.m. and 1.30 p.m. One Kasilingam of Chennai along with one Kamalakannan of Tuticorin would come in one Hyundai Car and TATA Sumo Car to the said place to take delivery of the contraband and to despatch the same to one Mohammed https://hcservices.ecourts.gov.in/hcservices/ Shiyam of Colombo through Kamalakannan. PW3 reduced the information in writing and submitted to Assistant Director, NCB, Chennai (PW15) and PW15, along with other NCB officers proceeded to the said spot with two independent witnesses PW13 & PW14 and on reaching the spot, they noticed the vehicles, the lorry, Hyundai Car and a TATA Sumo being parked near each other at M/s.Sarath Enterprises, Bharath Petroleum. The officers noticed the Accused No.2 getting down from the TATA Sumo Car and calling the Accused No.3 who was in the lorry. Accused No.3 came out and he opened a part of the diesel tank of the lorry and took out two heavy gunny bags and handed over the same to Accused No.2. One gunny bag was kept in the Hyundai Car and another in the TATA Sumo Car. Immediately, the NCB officers surrounded the vehicles and the Accused. The Accused No.3, the driver of the lorry and Accused No.4, the cleaner of the lorry were also present. The Accused No.1 was also sitting in the Hyundai Car. All the accused were explained about the provisions of Section 50 of the NDPS Act. Inside the two gunny bags, 15 polythene bags were found which contained heroin totally weighing about 15.057 kgs. Samples were taken and thus, the contraband was seized under Mahazar Ex.P7 in the presence of two independent witnesses PW13 & PW14. All the accused were taken to NCB office and in the office, before the NCB officers, confession statements were recorded which were marked as Exs.P62, 71, 59 and 68 respectively. All the accused were arrested on 05.04.2001 night and subsequently, they were remanded to judicial custody on the next day. The NCB Officer K.V.Baskar took up the investigation and after investigation, complaint was filed. 4. In order to establish the case of the prosecution, PW1 to PW16 were examined, Exs.1 to 106 were marked and Material Objects 1 to 22 were produced. Accused had been questioned under Section 313 of Cr.PC and they have denied the complicity of the offence. The jail doctor was examined as DW1. The Exhibits C1 to C6 were marked during the examination of the DW1. The trial Court, after analysing the evidence on record, acquitted the respondents/ A1 and A2 herein and A4 and convicted A3. 5. The learned Special Public Prosecutor for NCB cases submitted that the trial court having convicted A3 relying on the evidence of NCB officials, had not convicted the other co-accused. The case of the prosecution is that A3 and A4 are the driver and cleaner of the lorry came in the lorry and have handed over the contrabands to A1 and A2 who received the same and kept it in the car. The evidence of NCB officers were also supported by the independent evidence of PW13 and PW14. The accused was seen by the NCB officers on 04.04.2001 at about 1.30 p.m. But PW14 had given a stray answer stating that the lorry was seen even on 03.04.2001 night and the NCB officers were also seen there and relying on this, the trial Court had acquitted A1, A2 and A4. All the accused in this case have given https://hcservices.ecourts.gov.in/hcservices/ their voluntary confession statements which were marked as Exs.P62, P71, P59 and P68 respectively which corroborates the evidence of NCB Officers. 6. Per contra, the learned Senior Counsel Mr.B.Kumar appearing for the respondents 1 and 2 / Accused No.1 & 2 in Crl.A.No.862 of 2002 submitted that the answer given by PW14 Mahazar witness that the lorry was seen even on the night on 03.04.2001 and NCB officers were also present is not a stray answer. Even according to the prosecution, in the complaint filed which is marked as P106, it is stated that the lorry was parked even on the night of 03.04.2001 which is in nexus with the statement of A3 and A4, that the lorry was parked at the spot on 03.04.2001 and as such there was every possibility of the officers being present on 03.04.2001 night itself and taking the A3 and A4 to the custody on 03.04.2001 itself. 7. The learned Senior Counsel further submitted that the Accused No.1 was taken from his house on 04.04.2001 at 9.50 a.m. As he had not returned home, his wife had given a telegram at 10.45 p.m. on 04.04.2001 which is marked as Ex.C1. The first accused was produced before the learned Magistrate only on 05.04.2001 at 8.00 p.m. and he was kept for more than 24 hours and he was illegally detained and ill-treated. While the Accused No.1 was produced before the learned Magistrate, a petition was filed by the Accused No.1 which is marked as Ex.C4 stating that he was taken to custody on 04.04.2001 at 9.50 a.m. and he was ill treated . 8. On 07.04.2010, both the Accused No.1 and 2 each sent a letter to the Court retracting their confession statement which are marked as Exs.C2 and C3 respectively. The Accused No.2 also had stated in his letter dated 07.04.2001, marked as Ex.C2 that he was taken custody on 04.04.2001 at 9.50 a.m. The learned Senior Counsel further pointed out that DW1, the doctor who treated the Accused No.1 and 2 for the injuries sustained by them had given evidence and the relevant documents are also marked. 9. Mr.J.K.Sampath , learned Senior Counsel appearing for the Accused No.3 who is appellant in Crl.A.No.268 of 2003 submitted that the trial Court having acquitted all the other accused ought to have acquitted the Accused No.3 also. The learned Senior Counsel further pointed out that the Accused No.3 is convicted for both the offences u/s.21 and 25 of NDPS Act. The other accused having been acquitted, no possibility to conclude that the vehicle was permitted to be used for the commission of the offence by other co-accused. https://hcservices.ecourts.gov.in/hcservices/ 10. Per contra, the Special Public Prosecutor for NCB cases submitted that as far as the Accused No.3 is concerned, he had not retracted his voluntary confession statement. 11. This Court considered the submissions and perused the records. The trial Court had acquitted the Accused No.1 and 2 for the following reasons - [a] Section 50 of NDPS Act not complied with. [b] The contradiction between the complaint Ex.P106 and the evidences of PW11, 12, 13 and 14 with regard to seizure of contraband. [c] Prosecution of case is seizure was effected on the basis of the information report Ex.P7 is unacceptable. [d] Independent witnesses PW13 and 14 did not support the prosecution case. [e] Confessional statement of A1 and A2 was not voluntary in nature and not admissible in evidence. [f] The driver of the Accused No.2 Anbalagan was neither shown as an accused nor a witnesses and therefore, adverse inference could be drawn against prosecution. [g] The cell phone particulars Exs.P94, 95 and 96 not helpful to the prosecution to prove its case that A1 telephoned to A2 after the lorry reaching Chennai and after that only A2 started from Tuticorin by bus. [h] The evidence of PW14 shows that lorry was seen by him near Petrol Bunk during the night of 03.04.2001 itself and NCB officers surrounded the lorry and he came to know that material objects were seized from the lorry. PW14 was not treated as hostile. 12. The trial Court came to a conclusion that contraband ought to have been seized on 03.04.2001 and Accused No.3 who was the driver of the lorry alone was responsible for the seizure of the contraband from the lorry. 13. In the appeal preferred by the State against acquittal of the accused, the name of the Accused No.4 is not mentioned but erroneously the name of the Accused No.3 is mentioned as third respondent. Anyhow, this Court is to construe the appeal filed by the State in respect of the Accused No.1 and 2 only. According to the evidence of NCB officer PW3, he received an information over phone on 04.04.2001 at 9.30 a.m. and thereafter they went to the spot at 1.30 p.m. At that time, the lorry, two cars and the Accused https://hcservices.ecourts.gov.in/hcservices/ No.1 to 4 were seen. According to the evidence of PW14 who is one of the Mahazar witness, he had admitted in the cross examination that on 03.04.2001 night itself the lorry was parked and the NCB officers arrived at the spot. PW14 was not treated hostile by the prosecution and as such the evidence of PW14 in the cross examination stands as it is. Further, the answer given by PW14 in the cross examination cannot be said to be answers snatched by the skill of cross examination since even as per the complaint Ex.P106, the lorry was parked on the night of 03.04.2001 and as per the confession statement of A3 and A4, the lorry had come to the spot on 03.04.2001 night itself. Therefore, it is not possible to eschew the evidence given by PW14 regarding the presence of the NCB officers and the lorry on 03.04.2001 night. Further, Ex.C1-telegram has been sent to the Court by the wife of the Accused No.1 on 04.04.2001 at 10.45 p.m. stating that the Accused No.1 was taken from his house by the NCB officers on 04.04.2001. If Ex.C1 is accepted, then the doubt arises whether seizure of the contraband was at 1.30 p.m. 14. The trial Court has not placed any reliance on the confessional statements of the Accused which were marked as Exs.P62 and 71. The said confessional statements have been retracted by both the accused even at the earlier stage, i.e. 07.04.2001 within three days from the date of recording. The Accused No.1 also filed a petition before the learned Magistrate, marked as Ex.C4 in which it is mentioned that he was ill treated. DW1 jail doctor has also noticed grievous injuries on both the Accused No.1 and 2. This Court feels that it is unsafe to place reliance on Exs.P62 and P71 since doubt arises regarding the voluntariness of the confession statements. The reasons given by the trial Court for acquitting the Accused No.1 and 2 are acceptable. 15. At the same time, as far as Accused No.3 is concerned, he has not retracted to the confessional statement. It is established by the prosecution that the Accused No.3 is the driver of the lorry in which the contraband was transported. 16. As far as the Accused No.3 who is appellant in Crl.A.No.268 of 2003 is concerned, his conviction under Section 21 of NDPS Act is sustainable but the conviction under Section 25 of NDPS Act is not sustainable since the other co-accused having been acquitted, it is not possible to hold that the Accused No.3 knowingly permitted the vehicle lorry to be used for the commission of offence by other co- accused. 17. The learned counsel also brought to the notice of this Court that the Accused No.3 is unable to pay any fine amount and he is suffering from some disease. https://hcservices.ecourts.gov.in/hcservices/ 18. For the above said reasons, the Criminal Appeal filed by the State in Crl.A.No.862 of 2002 is dismissed and the impugned judgment of acquittal of the respondents/A1 and A2 is confirmed. The Criminal Appeal in Crl.A.No.268 of 2003 is partly allowed setting aside the conviction and sentence of the Appellant/Accused No.3 under Section 25 of NDPS Act but confirming the conviction of 8c r/w Section 21 of NDPS Act. The sentence of imprisonment of ten (10) years and the fine of Rs.1,00,000/- (Rupees One Lakh) imposed for the offences u/s.8c r/w Section 21 of NDPS Act is confirmed. But only the default sentence of imprisonment for non-payment of fine is reduced to one month rigorous imprisonment. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar rgr To 1.The Intelligence Officer Narcotics Control Bureau Rajaji Bhavan, Besant Nagar, Chennai – 90. 2.The Special Judge for NDPS Act cases, Chennai 3.The Special Public Prosecutor for NCB cases, High Court, Madras. 4. The Superintendent, Central Prison, Vellore, 5. The Superintendent Central Prison, Puzhal-I, Chennai. + 1 cc to r. R. Rajan, Advocate SR.51963 Crl. A.Nos.862/2002 & 268/2003 JRG(CO) EU 4.08.2010 https://hcservices.ecourts.gov.in/hcservices/