BAIL SLIP The Appellant/Accused No.I was viz., Mohammed Umar @ Mohammed Salim(A-1) S/o.Bassan Mohammed was directed to be released an bail as per the order of this Court dated.25.2.2009 in Crl.M.P.No.1/2008 in Crl.A.No.615/2008. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.04.2010 C O R A M THE HONOURABLE MR.JUSTICE S. NAGAMUTHU Criminal Appeal Nos.615 and 716 of 2008 and 205, 549 of 2009 and M.P.No.1 of 2009 in Crl.A.No.615 of 2008 Crl.A.No.615 of 2008 : 1. Mohammed Umar @ Mohammed Salim 2. Ahmed Mera Thambi @ Meeran @ Sekar ... Appellants/Accused 1 & 2 Crl.A.No.716 of 2008 : Ahmed Meeran Thambi @ Meeran @ Sekar ... Appellant/Accused 2 Crl.A.No.205 of 2009 : 1. Jaswant Sing @ Giani @ Jaswant Singh 2. Har Diyal Singh @ Diyal 3. M.Sathyanathan @ Nathan 4. Nausnad Ali @ Nabu ... Appellants/Accused No.3,4,5 & 6 Crl.O.P.No.549 of 2009 : M.Naushad Ali @ Nabu ... Appellant/Accused 6 Vs State rep.by The Intelligence Officer, Narcotics Control Bureau, South Zonal Unit, Chennai. ... Respondent/Complainant in all Crl.As. https://hcservices.ecourts.gov.in/hcservices/ Criminal Appeal No.615 of 2008 : Criminal Appeal is filed under Section 374(2) of Cr.P.C. against the judgment of the Principal Special Judge, Special Court under E.C. And NDPS Act, Chennai, dated 27.5.2008,in C.C.No.73 of 2001 convicting the 1st appellant for offence under Section 8(c) read with 21 and 29 of NDPS Act and sentencing him to undergo rigourous imprisonment for 10 years and to pay a fine of Rs.2 Lakhs for each offence and in default of fine amount to undergo further rigourous imprisonment for one year for each offence and the 2nd appellant for offence under Section 8(c) read with 21(c), 28 and 29 of NDPS Act and sentencing him to undergo rigourous imprisonment for 10 years and to pay a fine of Rs.2 Lakhs for each offence and in default, to undergo further rigourous imprisonment of one year. For Appellants : Mr.B.Kumar, Senior Counsel for M/s.L.Prabhakaran Mr.R.Ramachandran For respondent : Mr.R.Dhanapal Raj, Spl.P.P. For NCB Cases Criminal Appeal No.716 of 2008 : Criminal Appeal is filed under Section 374(2) of Cr.P.C. against the judgment of the Principal Special Judge, Special Court under E.C. and NDPS Act, Chennai in C.C.No.73 of 2001 by judgment, dated 27.5.2008, convicting the appellant for the offences under Sections 8(c) read with 21(c), 28 and 29 of NDPS Act, 1985 as amended by Act 9 of 2001 and imposing a sentence of 10 years rigourous imprisonment for each offence (to run concurrently) and a fine of Rs.2 Lakhs for each offence, in default, to undergo one year rigourous imprisonment. For Appellant : Mr.B.Kumar, Senior Counsel for R.Rajarathinam For respondent : Mr.R.Dhanapal Raj, Spl.P.P. for NCB Cases Criminal Appeal No.205 of 2009 : Criminal Appeal is filed under Section 374(2) of Cr.P.C. against the judgment of the Principal Special Judge, Special Court under E.C. And NDPS Act, Chennai in C.C.No.73 of 2001 by judgment dated 27.5.2008 convicting the 1st and 2nd appellants for offences under Sections 8(c) read with 21(c) and 29 of NDPS Act and the 3rd and the 4th appellants stand convicted for the offences under Sections 8(c) read with 21 (c), 28 and 29 of NDPS Act and sentenced them to undergo rigourous imprisonment for 10 years each and to pay a fine of Rs.2 Lakhs for each offence and in default of fine amount to undergo rigourous imprisonment for one year for each offence. https://hcservices.ecourts.gov.in/hcservices/ For Appellants : Mr.T.K.Sampath for M/s.Sampath Associates For respondent : Mr.R.Dhanapal Raj, Spl.P.P. For NCB Cases Criminal Appeal No.549 of 2009 : Criminal Appeal is filed under Section 374(2) of Cr.P.C. against the judgment of the Principal Special Judge, Special Court under E.C. And NDPS Act, Chennai in C.C.No.73 of 2001 by judgment dated 27.5.2008 convicting the appellant for offences under Sections 8(c) read with 21 and 29 of NDPS Act, 1985 as amended by Act 9 of 2001 sentencing the appellant to undergo rigourous imprisonment for 10 years and to pay a fine of Rs.2 Lakhs for each offence (Total fine imposed on the appellant is 6 Lakhs) and in default of the fine amount, to undergo one year Rigourous imprisonment for each offence. For Appellant : Mr.K.Shankar For respondent : Mr.R.Dhanapal Raj, Spl.P.P. For NCB Cases C O M M ON J U D G M E N T The appellants are accused 1 to 6 in C.C.No.73 of 2001 on the file of the learned Special Judge under EC and NDPS Act, 1985, Chennai. By judgment dated 27.5.2008, the learned Judge convicted and sentenced the appellants as follows: "A1 is guilty of an offence punishable under Section 8(c) read with 21(c) and 29 of NDPS Act, 1985 as amended by Act, 9/01 and A2 is guilty of an offence punishable under Section 8(c) read with 21 and 29 of NDPS Act, 1985 as amended by Act, 9 of 2001. A3 and A4 are guilty of an offence punishable under Section 8(c) read with 21(c) and 29 of NDPS Act and A5 and A6 are guilty of an offence punishable under Section 8(c) read with 21(c) and 29 of NDPS Act as amended by Act, 9/01 and they are convicted and sentenced to undergo 10 years rigourous imprisonment each and to pay a fine of Rs.2 Lakh for each offence, in default, to undergo one year R.I. for each offence. (Total fine imposed on A1 is Rupees Four Lakhs. A2 is Rupees Six Lakhs, A3 and A4 – Rupees Four Lakhs each, A5 and A6 Rupees Six Lakhs each, totally Thirty Lakhs). The substantive sentence of imprisonment imposed upon the accused as above shall run concurrently. The period of detention already undergone by the accused shall be set off under Section 428 of Cr.P.C. M.Os.1 to 20 are ordered to be confiscated to the State except M.Os.13 to 20, other M.Os. are ordered to be entrusted to the Committee constituted under the Act for https://hcservices.ecourts.gov.in/hcservices/ detention after the appeal time is over." Challenging the said conviction and sentence, the 1st and 2nd accused in C.C.No.73 of 2001 have preferred the appeal in C.A.No.615 of 2008 (the 2nd accused has preferred another Appeal in C.A.No.716 of 2008) and the accused Nos.3 to 6 have preferred the appeal in C.A.No.205 of 2009 (The 6th accused has preferred yet another appeal in C.A.No.549 of 2009). For the sake of convenience, the appellants are referred to as accused in the same order in this judgment. 2. The facts of the prosecution case in brief are as follows: P.W.1 was working as Intelligence Officer, Narcotic Control Bureau, South Zone, Chennai during the year 1999-2000. On 9.12.2000 at about 4.00 a.m., when he was in his office, he received an information that one Mohammed Umar @ Mohammed Salim (A1) herein had smuggled 20 Kgs. of heroine from Mandhaur Madhya Pradesh in a lorry bearing Registration No. DNG. 1210 and that the driver and the cleaner of the said lorry had parked the vehicle at No.897, G.N.T. Road, Madhavaram, Chennai and that one Ahamed Meeran Thambi @ Meeran (A2) of Kayalpattinam along with his accomplices Sathianathan @ Nathan (A5) and Nowshad Ali @ Nabu (A6) would come in an Auto bearing Registration No.TN07Y4179 to receive the contraband. P.W.1 reduced the said information in writing and sent a copy to the Superintendent of Narcotics Control Bureau under Ex.P.1. Then, he contacted the Superintendent over phone and proceeded to the scene of occurrence. He also immediately rushed to the scene of occurrence at 6.30 a.m. When he reached the place of occurrence, he found P.W.10, namely, the Superintendent of Narcotics Control Bureau and P.W.9 along with other officials and independent witnesses were present. At about 7.00 a.m., they surrounded the lorry and the Autorickshaw. They introduced themselves to the persons available in the lorry and autorickshaw. When they questioned the inmates of the lorry as well as Autorickshaw, they disclosed their identity. There were four men in the lorry and two men in the autorickshaw. The accused were apprised of their right available under Section 50 of NDPS Act. On enquiry, the 1st accused Md. Umar confessed that 20 Kgs. of Narcotic Drug was concealed at the bottom of the back side seat of the driver of the lorry. At that time, the 2nd accused admitted that he knew that the contraband was a Narcotic Drug. Then, the 1st accused opened the carry bag, took the Narcotic Drugs and produced the same before the officials. It was found that there were 4 polythene bags each containing 5 kgs. of heroin. The polythene bags were opened and the substances were tested with the help of the test kid. It answered positively indicating that the substances were heroin. Two sample packets from each polythene bag were drawn for the purpose of chemical analysis. Therefore, all the above substances were seized under the cover of Mahazar on the spot. When the 1st accused was personally searched, he was found in possession of a sum of Rs.95,000/-. The Auto was also searched in which incriminating https://hcservices.ecourts.gov.in/hcservices/ documents were found and the same were also seized by the NCB Officials. The lorry contained 14,500 pieces of plywood goods. The above said cash of Rs.95,000/-, the Plywood, the auto rickshaw and the lorry were all seized. The seized properties were sealed with the seal of the N.C.B. The sample packets were also sealed with the seal of the Narcotic Control Bureau. All the accused signed the Mahazar except the 2nd accused Ahmad Meeran Thambi. He declined to sign the Mahazar. Similarly, in the other Mahazars also, the 2nd accused declined to sign. Thereafter, the 5th accused was interrogated by P.W.1. He gave a statement before P.W.1 and the same was duly reduced into writing by P.W.1. The said statement is Ex.P.2 which is relevant under Section 67 of the Indian Evidence Act. In the said statement, he has narrated about the involvement of the 2nd accused also besides his involvement of the other accused. P.W.1 arrested the 5th accused at 11.00 p.m. on 9.12.2000. Ex.P.3 is the Arrest Memo. He explained the 5th accused about the grounds of arrest and then sent him for judicial remand. P.W.9, the then Intelligence Officer, who investigated the case, seized a sum of Rs.5,141/-. When the 2nd accused was searched, a sum of Rs.1,500/- was seized from him under a Mahazar. P.W.9 further recovered a train ticket from the 2nd accused indicating that he had travelled from Madurai to Chennai on 7.12.2000. Similarly from the other accused also, the currency notes in their possession were recovered. (Further details are not necessary for the disposal of these appeals and so they are omitted). The 6th accused also gave a confession statement wherein he has implicated himself and the Accused 1, 2 and 5. The 3rd accused gave a confession implicating himself, the Accused Nos.2 and 4. The 4th accused also gave a confession implicating himself and the accused Nos.2 and 3. The samples drawn from the contrabands were sent for analysis. On 13.12.2000, the sample packets numbering 4 were received by P.W.2 Smt. Saraswathy Charkravarthi, who was an Assistant Examiner, Customs House Laboratory, Chennai. Ex.P.6 is the Test Memo. On examination, she found the presence of Diacetyl Morphine (Heroin) in the substances. Ex.P.7 is the report. Based on the above materials, prosecution was launched against the accused. 3. The trial court framed charges against all these accused under Section 8(c) read with 21 and 29 of the NDPS Act. They denied the charges. Therefore, they were put on trial. During the trial, as many as 14 witnesses were examined and Ex.P.1 to Ex.P.116 were exhibited and 20 material objects were marked on the side of the prosecution. 4. When the accused were questioned under Section 313 of Cr.P.C. in respect of the incriminating evidences, they denied the same. However, they have not chosen to examine any witness on their side. https://hcservices.ecourts.gov.in/hcservices/ 5. Having considered all the above materials, the trial court convicted the appellants under all the charges as narrated in the 1st paragraph of the judgment. That is how, the appellants are now before this Court with these appeals. 6. Though these appeals have been preferred challenging both conviction and sentence, the learned Counsel for the Appellants would submit that they do not press these appeals in so far as the findings of the trial court as against the 1st accused and the accused 3 to 6 are concerned that they were found in possession of the contrabands. In respect of these appellants, the learned Counsel for the appellants would submit that the conviction should have been recorded only in accordance with Section 21(b) of the NDPS Act (Amended Act 9 of 2001). 7. In so far as the 2nd appellant is concerned, the learned Senior Counsel would submit that he presses for adjudication both in respect of the conviction and sentence. Therefore, I proceed to consider these appeals in the following manner, namely, in so far as the 2nd accused is concerned, the challenge in respect of the conviction and sentence is considered and in respect of others, the appeals are considered only in respect of appropriate penal provision under which they have to be convicted and also the quantum of punishment. 8. In so far as the appeal filed by the 2nd accused in C.A.No.716 of 2008 is concerned, he has been convicted based on the confession said to have been given by the other accused. Indisputably, the 2nd accused did not confess. Thus, there is no statement relevant under Section 67 of the Act which could be used as a substantive evidence against the 2nd accused. What is available against him is only the confessions said to have been given by the rest of the accused falling under Section 67 of the Act. There can be no doubt that these confessions are admissible in evidence under Section 67 of the Act. The bar contained in Section 25 of the Indian Evidence Act has been taken away by Section 67 of the NDPS Act. It has been well settled that such a confession recorded under Section 67 of the Act is a substantive evidence as against the maker of the statement. But in respect of the co-accused, the said statement can never be treated as a substantive evidence. At the most, it can be considered as a relevant evidence under Section 30 of the Indian Evidence Act. It has been well settled in a catena of judgments by the Honourable Supreme Court that the proper way to consider the confession of the co-accused is to keep the co-accused confession aside, to marshal all the other evidences available against the accused at first, and in the event of the court coming to the conclusion that the prosecution has proved the case against the particular accused, then to strengthen the said conclusion, the court will be at liberty to look into the co-accused confession also. In https://hcservices.ecourts.gov.in/hcservices/ this regard, reference may be made to the judgment of the Honourable Supreme Court in Kashmira Singh Vs. State of Madhya Prades reported in AIR 1952 SC 159. The said judgment has been consistently followed by the Supreme Court in several judgments. In this regard, yet another judgment of the Honourable Supreme Court in Hari Charan Kurmi and Jogia Hajam Vs. State of Bihar reported in AIR 1964 SC 1184. Applying the above well settled principles of law to the facts and circumstances of the case, if the evidences available on record are taken into consideration, indisputably, it is only the confession of the co-accused on which basis the lower court has convicted the 2nd accused which in my considered opinion is not sustainable. Apart from that, there is no other evidence available as against the 2nd accused. 9. But, according to the learned Special Public Prosecutor for the respondent, the 2nd accused was very much present in the lorry at the crucial moment. Therefore, according to him, it has to be presumed that he had knowledge that the lorry was carrying the contraband which was later on seized by the respondent. For this, the learned Special Public Prosecutor would rely on the judgment of the Honourable Supreme Court in State of Punjab Vs. Balkar Singh and another reported in 2004 Supreme Court Cases (Crl) 838. 10. I have carefully gone through the said judgment. In my considered opinion, the said judgment instead of helping the prosecution case, helps only the accused. It would be useful to extract the relevant portion of the said judgment at this juncture: "... The presence of the respondents at the place from where the bags of poppy husk were recovered itself was taken as possession of these bags by the police. In fairness, the police should have conducted further investigation to prove that these accused were really in possession of these articles. The failure to give any satisfactory explanation by the accused for being present on that place itself does not prove that they were in possession of these articles..." Thus, in my considered opinion, though the 2nd accused has failed to offer any explanation as to how he came to be present at the place of occurrence, that by itself would not go to prove that he was in possession of the heroine as it is contended by the learned Special Public Prosecutor. 11. The learned Special Public Prosecutor would rely on yet another judgment in Madan Lal and another vs. State of Himachal Pradesh reported in (2003) 7 Supreme Court Cases 465 wherein in paragraph 26 of the judgment, the Honourable Supreme Court has held as follows: https://hcservices.ecourts.gov.in/hcservices/ "Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles." 12. Relying on this observation of the Honourable Supreme Court, the learned Special Public Prosecutor would submit that in the instant case, the 2nd accused has failed to disprove his possession. But, I am not persuaded by the said argument for the simple reason that the prosecution has failed to prove that the 2nd appellant was in possession of the heroin. If only the prosecution has succeeded in proving that the 2nd appellant was in possession, then only the question of the 2nd accused explaining the possession would arise. Thus, this judgment will not help the prosecution. 13. The learned Senior Counsel for the appellants would rely on yet another judgment of the Honourable Supreme Court in Ismailkhan Aiyubkhan Pathan vs. State of Gujarat reported in 2000 Supreme Court Cases (Crl.) 1241 wherein in paragraph 8 of the judgment, the Honoruable Supreme Court has held as follows: "8. There is no statutory provision for drawing any presumption that a person who was present at any particular place shall be presumed to be in possession of the narcotic or psychotropic substance. No presumption under law can be drawn even under Section 114 of the Evidence Act merely because these persons were present when P.W.7 went there." As held by the Honourable Supreme Court, simply because, the 2nd accused was present at the crucial moment at the place of occurrence, there can be no automatic presumption that he was in possession of the contraband unless there is a legal presumption provided under the Statute. In this case, such a presumption cannot be raised against the 2nd accused at all. Thus, in my considered opinion, the prosecution has miserably failed to prove that the 2nd accused was in possession of the contraband so as to sustain the conviction. Therefore, the conviction and sentence imposed against the 2nd accused is liable to be set aside and C.A.No.716 of 2008 is liable to be allowed. 14. Now coming to the appeals filed by the Accused Nos.1 and 3 to 6, the learned Counsel for the Appellants would submit that they do not dispute the fact that these accused were found in possession of the heroin which was seized by the respondent. What all that they would contend is that the contrabands seized from the accused would fall within the ambit of Section 21(b) of the Act, inasmuch as, the quantity of contraband is an intermediate quantity, therefore, the https://hcservices.ecourts.gov.in/hcservices/ conviction should be under Section 21(b) of the Act. 15. The learned Senior Counsel Mr.Kumar would submit that as on the date the Amendment Act came into force, the accused were still facing trial. Therefore, according to him, as per Section 41 of the NDPS Amendment Act of 2001, the amended provision of Section 21 is very much applicable to the facts of the present case. The learned Special Public Prosecutor disputes the said legal position. Therefore, I deem it necessary to deal with the same. Section 41 of the Amended Act of 2001 reads as follows: "Application of this Act to pending cases : (1) Notwithstanding anything contained in sub-section (2) of Section 1, all cases pending before the courts or under investigation at the commencement of this Act shall be disposed of in accordance with the provisions of the Principal Act as amended by this Act and accordingly, any person found guilty of any offence punishable under the principal Act, as it stood immediately before such commencement, shall be liable for a punishment which is lesser than the punishment for which he is otherwise liable at the date of the commission of such offence. Provided that nothing in this section shall apply to cases pending in appeal. (2) For the removal of doubts, it is hereby decided that no Act or omission on the part of any person shall be punishable as an offence which would not have been so punishable if this Act has not come into force." 16. This amended provision came to be considered by the Honourable Supreme Court in Basheer @ N.P.Basheer Vs. State of Kerala reported in 2004 Supreme Court Cases (Crl.) 1107 wherein in paragraph 23, the Honourable Supreme Court has held as follows: "23. Thus, in our view, the Rubicon indicated by Parliament is the conclusion of the trial and pendencey of appeal. In the cases of pending trials, and cases pending investigation, the trial is yet to conclude; hence, the retrospective mollification of the rigour of punishment has been made applicable. In the cases where the trials are concluded and appeals are pending, the application of the amended Act appears to have been excluded so as to preclude the possible contingency of reopening concluded trials..." A reading of the above would go to show that the Honourable Supreme Court has laid down the law that the amended provision would be applicable in respect of cases which are pending trial, that means, which had not resulted in any conviction prior to the coming into force of the Act. However, the learned Special Public Prosecutor would rely on the judgment of the Honourable Supreme Court in Jawahar https://hcservices.ecourts.gov.in/hcservices/ Singh @ Bhagat Vs. State of GNCT of Delhi reported in (2009) 2 Supreme Court Cases (Crl.) 1122. In the said judgment, the Honourable Supreme court has referred to the judgment in Basheer's case referred to above. In this case, the occurrence was on 26.9.1999 and the appellant stood convicted on 9.11.2009. The amendment came into force on 2.10.2001. What was pending was only an appeal. Therefore, reconfirming the view taken in Basheer's case, the Honourable Supreme Court again reiterated the law to say that the amendment is applicable only to the cases which are either pending investigation or trial and not for the cases which are pending in appeal stage. Thus, this judgment does not come to help the appellants. Therefore, the law has been well settled now that the amended provision is applicable also to the cases which are pending trial as