IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.03.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.A.Nos.1368 of 2004 and 238 of 2007 and M.P.No.1 of 2009 in Crl.A.No.1368 of 2004, M.P.Nos.1 and 2 of 2009 in Crl.A.No.238 of 2007 Mohammed Muzam @ Thambi @ Samsudeen .. Appellant in Crl.A.No.1368 of 2004/ S/o. K.S. Jamaludeen Accused No.1 Lyndon Albert @ Raj .. Appellant in Crl.A.No.238 of 2007 S/o. B. Raymond Accused No.2 Vs. State: by Intelligence Officer, Narcotics Control Bureau, South Zonal Unit, Chennai-600 090. (N.C.B.F.No.48/1/3/2002-NCB/MDS). .. Respondent in both the Criminal Appeals/ Complainant Criminal Appeals filed u/s 374 of Cr.Pc against the judgment dated 10.11.2004 in C.C.No.254 of 2002 on the file of the Principal Special Court under E.C. and N.D.P.S. Acts, Chennai-104. For appellant in Crl.A.No.1368 of 2004: Mr.A.Ganesh For appellant in Crl.A.No.238 of 2007: Mr.T.K.Sampath for M/s.T.K.Sampath Associates For respondent in both the Criminal Appeals: Mr.R.Dhanapal Raj, Special Public Prosecutor for NCB Cases https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT These Criminal Appeals arise out of the judgment of conviction and sentence, dated 10.11.2004 in C.C.No.254 of 2002 on the file of the Principal Special Court under E.C. and N.D.P.S. Acts, Chennai- 104, whereby, the appellant (A.1) in Crl.A.No.1368 of 2004 and the appellant (A.2) in Crl.A.No.238 of 2007, were convicted for the offence under under Section 8(c) read with Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act') and each sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1 lakh each, in default, each to undergo one year rigorous imprisonment. A.1 and A.2 were acquitted of the charge under Section 29 of the NDPS Act and A.1 was also acquitted of the charge under Section 8 (c) read with 28 of the NDPS Act. 2. The case of the prosecution is as follows: The Intelligence Officer, Narcotics Control Bureau, South Zonal Unit, Chennai, laid charge sheet against the appellants/A.1 and A.2 and absconding accused Sarat and Saleem. P.W.1 Nalini Rajam, Intelligence Officer, Narcotics Control Bureau, South Zonal Unit, Chennai, received specific information on 20.2.2002 at about 15 hours over phone that A.1 Mohammed Muzam @ Thambi and A.2 Lyndon Albert Raj were carrying about 2.588 kgs. of heroin, concealed in a new blue-black travelling bag in false bottom and arriving at Chennai Central from Jaipur by Jaipur Express on 21.2.2002. P.W.1 Nalini Rajam, the then Intelligence Officer, NCB, Chennai, recorded the information under Ex.P-1 and submitted the same to P.W.6 Punnan, the then Assistant Director, NCB, Chennai. P.W.6, on receipt of the information, called P.W.2 Karthikeyan, P.W.7 Murugesan and P.W.1 Nalini Rajam, the then Intelligence Officers, NCB, Chennai, and briefed them about the information and also action to be taken. P.W.6 also sent Ex.P-2 letter through P.W.1, addressed to Superintendent of Police, CBI, Chennai, requesting him to provide two officers as witnesses to be present at the time of search and seizure. P.W.1 handed over Ex.P-2 to Superintendent of Police, CBI, Chennai. P.W.1 came to NCB Office on 21.2.2002 at 7.30 a.m.. P.W.5 Abirami Selvan and Mugilan, CBI Officers, came there and P.W.5 and Mugilan were informed about the information. Then P.W.1, P.W.2 and P.W.7, along with P.W.5 and Mugilan, proceeded to Central Railway Station and reached there at 9.30 a.m. At about 10 a.m., Jaipur Express arrived in Platform No.4 and A.1 and A.2, alighted from II A/c. coach and were intercepted. A.1 and A.2 were informed about their right to search, as contemplated under Section 50(1) of the NPDS Act. When the accused were enquired, they revealed that they concealed 2.5 kgs. of heroin in the false bottom of new blue-black travelling bag, which was in https://hcservices.ecourts.gov.in/hcservices/ possession of A.2 and they handed over four polythene packets containing the above contraband to P.W.1. When the contraband was tested with the help of the field test kit, it answered positive for heroin and the total weight of the contraband was 2.588 kgs. That has been recovered under Ex.P-3, in the presence of two independent witnesses, P.W.5 and Mugilan. 5 gms. were taken from each of the packets and the same were sealed with NCB.11 and were numbered as S1 to S8. The polythene packets containing the remaining contraband after taking samples, were also sealed after numbering the same as P1 to P4. The new blue-black travelling bag which was used for concealing the contraband was also sealed and numbered as P5. The polythene covers numbered as P1 to P4 were marked as M.Os.1 to 4 before Court. The blue-black travelling bag is M.O.5. When A.1 was searched, he was found in possession of train ticket Ex.P-4, additional train fare receipt Ex.P-5, the driving licence copy Ex.P-6 and M.O.6--cash Rs.3,550/-. When A.2 was searched, he was found in possession of driving licence and his visiting card and the same were recovered and they were marked as Exs.P-7 and P-8. The sample packets numbered as S1, S3, S5 and S7 were sent for chemical analysis on the basis of the requisition Ex.P-24. On that basis, the learned Special Judge gave letter Ex.P-15 for chemical analysis. The chemical examiner has been examined as P.W.3 Palaniappan and he gave report Ex.P-17 after conducting test. The sample packets containing remnant of the contraband sent after chemical analysis, are numbered as S1, S3, S5 and S7 and were marked as M.Os.7 to 10 and the sealed sample packets numbered as S7, S4, S6 and S8 were marked as M.Os.11 to 14 respectively. The mahazar drawn on the spot is Ex.P-3. P.W.1, P.W.5, Mugilan and the accused put their signatures on the seized materials under Ex.P-3 mahazar. The ticket recovered from A.1 is Ex.P-4. The excess fare ticket is Ex.P-5. The xerox copy of the driving licence of A.1 is marked as Ex.P-6. P.W.2 served summons on A.1 to appear before NCB Office for enquiry and the copy of the summons is Ex.P-10. Likewise, P.W.7 served summons on A.2 to appear before NCB Office for enquiry and the copy of the same is Ex.P-31. Then, the accused, accompanied by the NCB Officials, along with the recovered contraband, were brought to NCB Office and the accused were produced by P.W.1 before P.W.6 Mr.Punnen, Assistant Director and the contraband recovered was also produced by P.W.1 before P.W.6. P.W.6 directed P.W.1 to keep the seized contraband, to produce the same before the remanding officer. On 21.2.2002, A.1 was examined by P.W.2 and at that time, A.1 gave voluntary statement Ex.P-11. Then, P.W.2 accompanied by P.W.4 https://hcservices.ecourts.gov.in/hcservices/ and A.1, went to the residential place of A.1 at No.2C, Tass Villa, Halls Road, Egmore, Chennai, for search, on 22.2.2002. That place was searched in the presence of two independent witnesses Murugan and Wesley and they seized the spare parts of the suit-case, which was used for concealment of narcotic drugs and at that time, A.1 gave a statement and that is marked as Ex.P-12. P.W.4 then seized them and sealed them with the seal NCB.11. That sealed cover is M.O.15. P.W.4 prepared mahazar Ex.P-18 in the presence of the same witnesses. A.1 was arrested on 22.2.2002 at 5.30 p.m. and the arrest memo Ex.P-13. Then, they went to the house bearing Door No.8/4 Mandapam Road, Kilpauk Garden, Chennai and verified the stay of A.1 there. Then they reached the NCB Office and produced the mahazar Ex.P-18 and M.O.15 to P.W.6, along with the enquiry report Ex.P-19. P.W.7 examined A.2 who accompanied them to NCB Office on 21.2.2002 and he gave a voluntary statement Ex.P-32 and then A.2 was arrested on the basis of the statement and seized material on 22.2.2002, after serving the arrest memo Ex.P-33. On the directions of P.W.6, P.W.1 handed over the seized contraband and the documents to P.W.4 Srinivas, on 22.2.2002 at about 5 p.m. P.W.2 submitted a report under Section 57 of the NDPS Act to P.W.6 and the report is dated 23.2.2002 and the same is Ex.P-14. P.W.7 submitted a report under Section 57 of the NDPS Act in Ex.P- 34 on 23.2.2002. P.W.1 also submitted a report Ex.P-9 under Section 57 of the NDPS Act to P.W.6 on 23.2.2002 at 8 a.m. P.W.2 and P.W.7 produced the statements of the accused and the arrest memos, along with the accused to P.W.4. P.W.4 prepared a report. P.W.4 produced A.1 and A.2 before IX Metropolitan Magistrate, for remand. The remanding Magistrate remanded the accused and directed to produce the seized properties before the Special Court and the remand report is Ex.P-20. P.W.4 deposited the seized properties in NCB Office, through a forwarding memo Ex.P-21 on 22.2.2002 and the go-down receipt Ex.P- 22 was issued by P.W.6. On 28.2.2002, P.W.4 produced the seized properties before the Special Court with memo Ex.P-23 and through Ex.P-24 requisition, he requested the Special Court to send the sample packets S1, S3, S5 and S7 for chemical examination. He also submitted before the Special Court the seized currency notes through Ex.P-25 memo for inventorisation of the currency. He received the information along with a letter of the Magistrate and handed over the same to Customs https://hcservices.ecourts.gov.in/hcservices/ Laboratory on 28.2.2002 and deposited the returned the properties from the Court to NCB's go-down, Chennai on 28.2.2002. P.W.7 took up the investigation on the direction of P.W.6 and enquired about the stay of A.1 in Brahma Mansion situated at New No.28, Ramaswamy Street, Purasawalkam, Chennai and found that he did not stay there and submitted the enquiry report Ex.P-35 to P.W.6. P.W.6, on 8.4.2002, sent Ex.P-26 letter to the Assistant Director, NCB, Jodhpur Zonal Unit, Jodhpur and called for the particulars of the lodges where the accused were suspected to have stayed. P.W.6 also sent another letter Ex.P-27 to the Chief Reservation Supervisor, Madras Central Station, Southern Railway, Chennai, requesting for the reservation chart and the application of the accused to travel from Chennai to Jaipur by Jaipur Express on 15.2.2002. P.W.6 also sent another letter Ex.P-28 on 19.4.2002 to Police Narcotics Bureau, Colombo, Srilanka, seeking for the verification of the address details of A.1 and his antecedents. On 3.5.2002, he gave letter Ex.P-29 to the Chief Commercial Manager, Northern Railway, New Delhi, seeking for the reservation chart and the application for reservation of the accused for journey from Jaipur to Chennai on 19.2.2002. P.W.6 also sent letter Ex.P-30 to the Assistant Manager of Air Tel Office, Nungambakkam, Chennai, asking for subscription details of Mobile Phone Nos.98401 04091 and 98400 22692. From P.W.6, P.W.7 received the requisition along with Ex.P-37, which is the Railway reservation application form, which was attested and Ex.P-38, which is the RAC/Waiting List for A/c 3 tier sleeper of the passengers for journey from Chennai to Jaipur. P.W.7, after getting signature from P.W.6, sent letter Ex.P-39 dated 17.6.2002 to the Zonal Director, NCB, Jodhpur Zonal Unit, Jodhpur, seeking for the details regarding the stay of the accused at Jaipur and Ajmeer at the lodge/Hotel. On the same day, again, P.W.7, through P.W.6, after getting signature from P.W.6, sent another letter Ex.P-40 to the Assistant Director of NCB, Mumbai Zonal Unit, Mumbai, informing about the Telephone No.07267 96981 given by the accused and sought for the address/owner of the said Telephone Number. Ex.P-41 was sent by the Zonal Director of the Chennai South Zonal Unit of NCB to the Director of Police Narcotic Bureau, Colombo, Srilanka, seeking for the address and other details of A.1. The fax message Ex.P-42, was received from Police Narcotic Bureau, Colombo, stating that the address of A.1 was not correct. The NCB Office, Chennai South Zonal Unit, also received Ex.P-43 from the Zonal Director, NCB, Jodhpur, in which the particulars of the Hotels at Jaipur and Ajmeer, where the accused stayed and the statements of the Managers of the Hotels, were enclosed. P.W.8 Raman Thyagi, the then Intelligence Officer, NCB, Jodhpur, Rajasthan, issued Ex.P-44 summons under Section 67 of the https://hcservices.ecourts.gov.in/hcservices/ NDPS Act to the Manager, Hotel Delhi Darbar, Rajasthan, by Registered Post, asking him to appear before him on 1.7.2002 and directed him to bring the check-in and check-out register of the Hotel. In pursuance of the same, Mr.Habib Ahmed, the Manager of Hotel Delhi Darbar, appeared on 4.7.2002 and gave a written statement Ex.P-45 along with the xerox copy of the page containing Sl.No.257 of the check-in and check-out register of Hotel Delhi Darbar, Ajmeer, which was signed by him and the xerox copy of page Sl.No.217 of the check-in and check-out register is Ex.P-46. P.W.8 handed over Exs.P-44 to P-46 to the Zonal Director, NCB, Jodhpur. P.W.7, after completing the investigation, filed the charge sheet against the accused and the absconding accused Sarat and Saleem on 14.8.2002. 3. During the course of trial, on the side of prosecution, P.Ws.1 to 8 were examined, Exs.P-1 to P-46 were marked and M.Os.1 to 15 were produced. After examining the witnesses on the side of prosecution and marking documents, the trial Court, under Section 313 Cr.P.C., posed incriminating evidence against the accused, which was denied by the accused. On the side of the accused, D.W.1 Thiagarajan, the Head Clerk of the Special Court under EC and NDPS Acts and D.W.2 (A.2) were examined. No document was marked on the side of the accused. 4. After considering the oral and documentary evidence, the trial Court convicted and sentenced the appellants/A.1 and A.2 as indicated above. Against the same, the present Criminal Appeals have been separately filed by the appellants/A.1 and A.2. 5. Challenging the conviction and sentence passed by the trial Court, learned counsel appearing for the appellant (A.1) in Crl.A.No.1368 of 2004 would make the following submissions: (i) Sections 52 and 55 of the NDPS Act was not complied with. (ii) Standing Order Nos.1 of 1988 and 1 of 1989 were not complied with. (iii) The samples alleged to have been seized from the accused and sent for chemical analysis, are doubtful. (iv) There is discrepancy in the deposition of the witnesses with regard to the possession of the contraband when it was seized. (v) P.W.5 is not an independent witness. (vi) The confession statement of the accused under Section 67 of the NDPS Act, is inadmissible in evidence. (vii) No specific question for possession was posed before the accused under Section 313 Cr.P.C. and so, the accused is prejudiced. He prayed for acquittal of A.1. https://hcservices.ecourts.gov.in/hcservices/ To substantiate his contentions, learned counsel for the appellant/A.1 relied upon various decisions of the Apex Court, this Court and other High Courts. 6. Learned counsel for the appellant (A.2) in Crl.A.No.238 of 2007 would strengthen the arguments of the counsel for A.1 and culled out the portion of the oral evidence of the prosecution witnesses. He mainly focussed upon his argument that A.2 is neither in conscious nor legal possession and he was only accompanying A.1. The statement Ex.P-32, of A.2 under Section 67 of the NDPS Act is to be either rejected in toto or accepted in toto, and there cannot be piecemeal consideration of the same. Learned counsel for A.2 further submitted that non-production of go-down register is fatal the case of the prosecution. He further relied upon Ex.P-23 (memo for submissions of property before Court) and submitted that P.W.4 has not given any explanation as to how he came into possession of the property when once he deposited the same before the NCB go-down and the go-down keeper has not been examined. He prayed for acquittal of A.2. 7. Per contra, learned Special Public Prosecutor for NCB Cases, appearing for the respondent-Intelligence Officer of the NCB, submitted that as soon as P.W.1 received information, she preferred Ex.P-1 under Section 42(1) of the NDPS Act and forwarded it to P.W.6, her superior officer and so, P.W.1 complied with Section 42 of the NDPS Act. He further submitted that P.W.1 complied with Section 50 of the NDPS Act. P.W.1 also prepared Ex.P- 9 report under Section 57 of the NDPS Act, which has been properly sent to the Assistant Director of the NCB, Chennai. The evidence of P.Ws.1, 2, 6 and 7 proved compliance of Section 55 of the NDPS Act and their evidence also corroborates the same. Learned Spl.P.P. further submitted that Ex.P-2 letter has been issued to CBI for securing the witnesses, for conducting search, in accordance with law and taking CBI Officials as witnesses, will not vitiate the case of the prosecution. The possession of the contraband, is proved by way of examining P.Ws,1,2,5 and 7. Learned Spl.P.P. further submitted that the Standing Order Nos.1 of 1988 and 1 of 1989, are only the guidelines and not mandatory and non-compliance of the same is not fatal to the case of the prosecution and moreover, in this case, the Standing Order has been complied with. Learned Spl.P.P. further submitted that the contraband was concealed in the false bottom of the travelling bag and so, non- marking of the polythene packets, is not fatal. The seizure of the contraband is supported and proved by the evidence of P.Ws.1,2,5 and 7. The statement of the accused under Section 67 of the NDPS Act, is in accordance with law and that has been proved by way of examining P.W.2 and P.W.7 and Exs.P-11, 12, 32 and 33. The go-down receipt has been filed and non-filing of the go-down register is not fatal, since there is no tampering of the seal in the sample https://hcservices.ecourts.gov.in/hcservices/ packets. Learned Spl.P.P. relied upon various decisions of the Supreme Court, this Court and other High Courts in support of his contentions and prayed for dismissal of the Criminal Appeals. I. 8. Learned counsel for the appellants/A.1 and A.2 mainly focussed their argument that non-compliance of Sections 52 and 55 of the NDPS Act, would vitiate the conviction of the accused. Learned counsel further submitted that as soon as the contraband was seized, they should be kept in safe custody in sample packets, pending orders of the Magistrate within the local area of the Police Station. The material objects have been seized by P.W.4 and P.W.7 in the presence of P.W.5 and one Mugilan and it was in their custody and P.W.1 has not deposited the seized materials within the local area Police Station, to deliver the same to the superior officers and so, Sections 52 and 55 of the NDPS Act have not been complied with. 9. Learned Spl.P.P. submits that while perusing the remand report, it is seen that the material objects have been produced before the remanding Magistrate and the learned remanding Magistrate has directed P.W.4 to produce the seized objects before the Special Court and hence, Sections 52 and 55 of the NDPS Act have been complied with. Further, learned Spl.P.P. further submitted that Sections 52 and 55 of the NDPS Act, are only directory in nature and not mandatory and even if they are not complied with, it will not vitiate the conviction. 10. Sections 52 and 55 of the NDPS Act reads as follows: "Section 52: Disposal of persons arrested and articles seized.--(1) Any officer arresting a person under section 41, section 42, section 43 or section 44 shall, as soon as may be, inform him of the grounds of such arrest. (2) Every person arrested and article seized under warrant issued under sub-section (1) of section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued. (3) Every person arrested and article seized under sub-section (2) of section 41, section 42, section 43 or section 44 shall be forwarded without unnecessary delay to-- (a) the officer-in-charge of the nearest police station, or (b) the office empowered under section 53. (4) The authority or officer to whom any person or article is forwarded under sub-section (2) or sub- section (3) shall, with all convenient despatch, take such measures as may be necessary for the disposal according to law of such person or article." https://hcservices.ecourts.gov.in/hcservices/ "Section 55: Police to take charge of articles seized and delivered.--An officer in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer in-charge of the police station." 11. At this juncture, it is appropriate to consider the decisions relied upon by learned counsel for the appellants/A.1 and A.2, which are as follows: (a) 2009 (2) Crimes 171 (SC) (U.O.I. Vs. Bal Mukund & Ors) "40. There is another infirmity in the prosecution case. Section 55 of the Act reads as under: .... P.W.7 did not testify as to which of the bags seized had been sent for analysis. No statement had been made by him that the bags produced were the bags in question which were seized or the contraband was found in them." (b)MANU/SC/2913/2008 (Noor Aga Vs. State of Punjab and another): "163. Our aforementioned findings may be summarized as follows: 1. The provisions of Sections 35 and 54 are not ultra vires the Constitution of India. 2. However, procedural requirements laid down therein are required to be strictly complied with. 3. There are a large number of discrepancies in the treatment and disposal of the physical evidence. There are contradictions in the statements of official witnesses. Non-examination of independent witnesses and the nature of confession and the circumstances of the recording of such confession do not lead to the conclusion of the appellant's guilt. 4. Finding on the discrepancies although if individually examined may not be fatal to the case of the prosecution but if cumulative view of the scenario is taken, the prosecution's case must be held to be lacking in credibility. https://hcservices.ecourts.gov.in/hcservices/ 5. The fact of recovery has not been proved beyond all reasonable doubt which is required to be established before the doctrine of reverse burden is applied. Recoveries have not been made as per the procedure established by law. 6. The investigation of the case was not fair. We, therefore, are of the opinion that the impugned judgment cannot be sustained which is set aside accordingly." (c) 2001 SCC (Cri) 426 (Gurbax Singh Vs. State of Haryana): "9. The learned counsel for the appellant next contended that from the evidence it is apparent that the IO has not followed the procedure prescribed under Sections 52, 55 and 57 of the NDPS Act. May be that the IO had no knowledge about the operation of the NDPS Act on the date of the incident as he recorded the FIR under Sections 9/1/78 of the Opium Act. In our view, there is much substance in this submission. It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, IO cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In the present case, IO has admitted that seal which was affixed on the muddamal article was handed over to the witness PW 1 and was kept with him for 10 days. He has also admitted that the muddamal parcels were not sealed by the officer in charge of the police station as required under Section 55 of the NDPS Act. The prosecution has not led any evidence whether the chemical analyser received the sample with proper intact seals. It creates a doubt whether the same sample were sent to the chemical analyser. Further, it is apparent that the IO has not followed the procedure prescribed under Section 57 of the NDPS Act of making full report of all particulars of arrest and seizure to his immediate superior officer. The conduct of panch witness is unusual as he offered himself to be a witness for search and seizure despite