Bail Slip The Appellant/Accused herein namely S.E.Pitchaithambi was directed to be released on Bail by the order of this Court dated 10.2.2009 and made in M.P.No.1/08 in C.A.No.831/08. IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 10.9.2009 Coram The Hon’ble Mr.Justice M.JEYAPAUL Criminal Appeal Nos.789 of 2008, 831 of 2008 and 170 of 2009 S.Emperumal Appellant in Crl.A.No.789/2008 Dr.S.E.Pitchaithambi alias Thambi Appellant in Crl.A.No.831/2008 M.G.Selvaraj Appellant in Crl.A.No.170/2009 vs. Intelligence Officer, NCB, South Zone Unit, Chennai. Respondent in all the appeals(Complainant) Criminal Appeals are filed under Section 36-B of the NDPS Act read with section 374(2) of the Code of Criminal Procedure against the conviction and sentence made in C.C.No.276 of 2001 dated 24.7.2008 on the file of the Principal Special Judge for EC & NDPS Act, Chennai. For appellants in all the three appeals : Mr.V.Gopinath, Senior Counsel for Mr.R.Rajarathinam in CA.No.789/08 : Mr.D.Vairamoorthy in CA.831/08 : Mr.Ganesh Rajan in CA.No.170/09 For respondent : Mr.R.Dhanapal Raj, Special Public Prosecutor for NCB Cases. https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT The third accused S.Emperumal has filed Criminal Appeal No.789 of 2008, the second accused Dr.S.E.Pithaithambi alias Thambi has filed Criminal Appeal No.831 of 2008 and the first accused M.G.Selvaraj has filed Criminal Appeal No.170 of 2009 aggrieved by the judgment of conviction recorded by the Trial Court in C.C.No.276 of 2001. 2. The State has not preferred any appeal against the acquittal of A4 R.Chellappa. 3. A1 and A3 were convicted for offence under section 8(c) read with section 21(c), 28 and 29 of the NDPS Act and each one was sentenced to undergo 12 years rigorous imprisonment for each of the offences and to pay a fine of Rs.2,00,000/= with a default sentence of one year rigorous imprisonment for each of the offences. A2 was convicted under section 8(c) read with section 21(c), 25, 28 and 29 of the NDPS Act and was sentenced to 12 years rigorous imprisonment for each of the offences and to pay a fine of Rs.2,00,000/= with a default sentence of one year rigorous imprisonment for each of the offences. A1 and A3 were also convicted for offence under section 30 of the NDPS Act and each one was sentenced to 6 years rigorous imprisonment and to pay a fine of Rs.1,00,000/= with a default sentence to undergo one year rigorous imprisonment. 4. On the side of the prosecution, P.Ws.1 to 12 were examined and Exs.P1 to P65 and M.Os.1 to 26 were marked. 5. The sum and substance of the case of the prosecution as unfolded by the witnesses examined on the side of the prosecution is as follows:- (i) PW1, Intelligence Officer attached to Narcotic Control Bureau (NCB) received information at about 10.00 am on 12.9.2001 that A1 and A4 procured 15 kgs of heroin from North India and the same was in possession of A2 who was an associate of A1. A1 and A2 were likely to come by a Maruti Wagon R to deliver the contraband to A3 who would arrive at Pettucola Towers at about 4.00 pm on 12.9.2001 in an Ambassador Car. The further information passed on to PW1 was that the contraband was to be smuggled to Sri Lanka in order to hand over to one Lal Peris. PW1 reduced the information (Ex.P1) into writing and placed it before PW7 M.J.Punnan, Assistant Director of NCB. (ii) PW7 summoned PW1 at about 12.00 noon on the said day and https://hcservices.ecourts.gov.in/hcservices/ handed over Ex.P33 letter addressed to the Tahsildar to offer witnesses for the proposed raid. PW1, PW8 S.Gunabalan, Intelligence Officer, NCB, Chennai, and K.V.Baskar proceeded to the office of the Tahsildar, Egmore-Nungambakkam Taluk at 12.30 pm and reached that office at 1.30 pm. PW2 R.Srinivasan, Intelligence Officer, NCB, Chennai proceeded to Nowroji Road alongwith PW7 and PW10 Mohan, Intelligence Officer, NCB, Chennai at 2.15 pm and reached the destination at 3.15 pm. The Tahsildar, Egmore-Nungambakkam Taluk, on the basis of the requisition letter, Ex.P33 emanated from PW7 deputed PW11 Rethnamani and PW12 Parthasarathy who were Revenue Inspectors to be witnesses to the raid and search proposed by PW7. The authorisation letter deputing the aforesaid personnel from the office of the Tahsildar, Egmore-Nungambakkam addressed to PW1 was marked as Ex.P2. PW1 alongwith his party and those witnesses arrived at Nowroji Road at 3.30 pm and waited over there. (iii) They found an Ambassador Car bearing registration No.TN- 01-L 1072 marked as M.O.25 came from Poonamallee High Road and stopped at Nowroji Road near Pettucola Towers at 3.45 pm. Thereafter, a Wagon R vehicle bearing registration No.TN-07-L 7900 marked as M.O.26 came and stopped near the said Ambassador Car. A1 and A2 got down from the Wagon R Vehicle. A3 on his part alighted from Ambassador Car and all of them started interacted for a few minutes. A2, thereafter, proceeded to Wagon R vehicle and took a heavy baggage and sat on the rear side of the Ambassadar Car and A1 and A3 took their seat in the front seat of the Ambassadar Car. At that point of time, the raiding party surrounded the car and introduced themselves to A1 to A3. The raiding party also explained the option of search available under section 50 of the NDPS Act to each of the accused. But, they were not keen to avail the benevolent provision of section 50 of the said Act. They chose to furnish their names to the raiding party. (iv) The accused were questioned whether they were in possession of any Narcotic contraband. They voluntarily came forward to admit that they did have 15 kgs of heroin. A2 took out the box from a specifically designed cavity found behind the rear seat of the Ambassador Car. There were totally 15 smaller bags wrapped in tape. (v) PW1 took samples from each of the bags and ascertained that the contraband was heroin using the field test kit. On weighment, the contraband weighed 15.898 kgs. He collected samples of two bags containing 5 gms each from each of the 15 bags. (vi) PW1 adhered to the procedure of seizure. He sealed and assigned and number to the contraband. He reduced into writing the procedures adhered to by him in the form of mahazar, Ex.P8 and the https://hcservices.ecourts.gov.in/hcservices/ same was attested by those two witnesses PW11 Rathnamani and PW12 Parthasarathy deputed by Tahsildar, Egmore-Nungambakkam for the purpose of raid. (vii) PW1 took the accused to the office of NCB, Chennai. PW7 directed PW2 to enquire A2 Dr.Pitchaithambi. PW2 explained the provision of section 67 of the NDPS Act to the second accused. Thereafter, A2 gave voluntary confession statement, Ex.P14 till 11.30 pm. Thereafter A2 expressed fatigue and was permitted to go to bed. A2 continued his confession statement, Ex.P15 on 13.9.2001 and thereafter he was placed under arrest at 11.30 am on 13.9.2001. Ex.P16 is the arrest memo. PW1 handed over the second accused alongwith the statement recorded under section 67 of the NDPS Act and the arrest memo, Ex.P16 to PW6. (viii) On 12.9.2001 at about 8.00 pm, PW7 directed PW8 to enquire A1. A1 gave a voluntary statement in his handwriting. He, thereafter, went to bed and continued his statement on 13.9.2001. The statement recorded from the first accused under section 67 of the NDPS Act was marked as Ex.P50. At about 9.00 pm on the said day, PW7 directed PW3 Ananthi Intelligence Officer, NCB, Chennai to record the confession statement of A3 under section 67 of the NDPS Act. A3 gave voluntary confession statement till 10.00 pm and thereafter, he went to bed. A3 continued his statement at 7.00 am on 13.9.2001 and completed it at 11.00 am. The voluntary statement given by A3 was marked as Ex.P18. (ix) PW1 handed over the contraband and documents to PW6 at 5.00 pm on 13.9.2001. A3 was arrested as per the arrest memo, Ex.P19 at 12.30 pm. PW1 handed over A3 alongwith the arrest memo, intimation of arrest and voluntary statement given by A3 to PW6. He also submitted a special report, Ex.P20 under section 57 of the NDPS Act. On 13.9.2001, PW7 handed over custody of the arrested accused and the seized materials and contraband to PW6. He alongwith his officers produced the accused and the contraband before the court and the remand report, Ex.P8 for judicial remand. The Special Judge directed PW6 to produce the contraband on 18.9.2001. The contraband was under safe custody in the office godown. PW1 submitted his report, Ex.P9 under section 57 of the NDPS Act to PW7 at 9.30 am on 14.9.2001 and PW2 submitted his report, Ex.P17 under section 57 of the NDPS Act to PW7 at 10.15 am on 14.9.2001. (x) PW1 made a search of Hansa Inn at Dr.Gurusamy Road belonging to A2 on 15.9.2001 as per the directions of PW7. He found no incriminating materials or contraband in the said Hansa Inn. The https://hcservices.ecourts.gov.in/hcservices/ search mahazar, Ex.P10 was prepared by him. PW3 proceeded to the house of A1 for search at about 2.00 pm on 17.9.2001 as per the directions of PW7. He also found that there was no contraband or any incriminating materials in the house of A1. The search mahazar prepared by him was marked as Ex.P21. PW4 proceeded to the house of A2 at about 1.00 pm on 17.9.2001 as per the directions of PW7 and made a search in the presence of the independent witnesses, but, he found that there was no incriminating materials or contraband in the house of A2. He prepared search mahazar Ex.P22. (xi) PW6 produced the contraband alongwith money recovered before the court under memo for inventory of currency under Ex.P31 and memo for submission of properties Ex.P32 on 18.9.2001. PW6 handed over the 15 sealed bags to PW5 Padmasini, Scientific Assistant attached to Customs House under letter, Ex.P24 on 19.9.2001. Seven sealed packets were given to one Saraswathi Chakrawarthy and 8 packets were given to one Ameer Shajahan, Forensic Science Experts by PW5. The covering letter sent by court to the chemical examiner was marked as Ex.P25. The test memo was marked as Ex.P26 and the Test report conclusively saying that the samples of contraband sent were heroin was marked as Ex.P27. (xii) PW4 Nalini Rajan, Intelligence Officer searched the house of A4 as per the directions of PW7 at about 1.40 pm on 26.9.2001. She found that there was no incriminating materials or contraband in his house. The search report prepared by her was marked as Ex.P22. (xiii) After completion of the investigation, PW9 Sajan Rao Shindey, Intelligence Officer, NCB, Chennai filed final report against all the four accused and the absconding accused Lal Peris for various offences under NDPS Act on 3.12.2001. 6. The incriminating circumstances spoken to by the witnesses examined on the side of the prosecution were put to the accused. They came out with a total denial of their involvement in the Narcotic Crime alleged as against them. They have come out with a version that no vehicle nor any contraband was seized and a false case was foisted on them. 7. On the side of the defence, D.Ws.1 to 7 were examined and Exs.D1 to D13 were marked. 8. DW1 Dr.Kathirvel was serving as Doctor in Central Prison, Chennai. It was his duty to check up the remand prisoners and give treatment to them. He also maintained outpatient nominal register https://hcservices.ecourts.gov.in/hcservices/ Ex.D1. He examined A2 Dr.Pitchaithambi as outpatient and found swelling on his left and right back and both knees. The wound details found on A2 was marked as Ex.D2. DW1 also examined A2 on 15.9.2001 and 16.9.2001. The wound details recorded by him in the register was marked as Exs.D3 and D4. He also examined A2 from 17.9.2001 to 24.9.2001 and noted down the injuries in the register which was marked as Ex.D5 series. On 14.9.2001 itself, DW1 found swelling wound on the person of A1 M.G.Selvaraj. The wound details found in the register was marked as Ex.D6. DW1's treatment particulars regarding A1 Selvaraj on 16.9.2001 was marked as Ex.D8. The treatment particulars regarding A1 Selvaraj recorded by DW1 from 18.9.2001 to 21.9.2001 was marked as Ex.D9 series. 9. DW2 Dr.Rathinavelu served as Assistant Professor in Coimbatore Medical College. DW1 recommended 19 patients to him on 22.9.2001. He checked A2 and gave him treatment for the swelling wound found on his person. The medical registers relating to the treatment given by DW2 were marked as Exs.D10 and D11. 10. DW3 M.Riyaz was a Building Contractor. A2 called him over phone and asked him to send his car to Dindigul as he had proposed to attend his friend's daughter's marriage at Dindigul. On 2.9.2001, DW3 proceeded to Dindigul to attend the said marriage alongwith A2 and his friends. They all went to Kodaikanal and stayed in his house. On 3.9.2001 at about 10.30 am, DW3 attended another marriage reception at Kodai International Hotel alongwith A2. Thereafter, he provided his car to A2 to drop him at Dindigul. It is found that A2 was with him from the night of 2.9.2001 to the evening of 3.9.2001. 11. DW4 Gabriel was working as Security at Alsa Towers Residency Complex. He was on duty in the said complex from 7.00 pm on 12.9.2001 to 7.00 am on 13.9.2001. When he was on rounds at 6.30 am on 13.9.2001, he saw two unknown persons opening the Maruti Car bearing registration No.TN GL 7900. When DW4 approached them, they left the place with the above car. He passed on the aforesaid incident to DW5 Dr.Jaikishan who was the Secretary of Alsa Tower Residency Complex. The attendance register for security personnel maintained by Alsa Tower Residency Complex was marked as Ex.D12. The duty details of DW4 found in the register was marked as Ex.D13. DW5 Dr.Jaikishan asked DW4 Gabriel to inform to A2 Dr.Pitchaithambi about the incident. 12. DW6 Ibrahim was running a medical shop in front of the clinic of A2. He used to see A2 in the clinic from 11.00 am to 3.00 pm and from 6.00 pm to 12.00 midnight. But, on 12.9.2001, he found https://hcservices.ecourts.gov.in/hcservices/ that A2 did not attend the clinic. Usually, A2 would inform the medical shop run by DW6 if at all there was any inconvenience for him to come to the clinic. But, on 12.9.2001, he did not receive any information about the absence of A2. On 12.9.2001, he contacted A2 over phone, but, he found that the mobile phone was switched off. 13. DW7 Panneer Selvam was a practising advocate for the past 14 years. On 13.9.2007, at about 7.00 pm when, his senior counsel called him over phone to go over to Egmore Court in connection with the remand of A2, he went to Egmore Court at about 7.45 pm on the said day. He found his senior over there. At about 8.30 pm, NCB Officers came to Egmore Court alongwith four persons for remand. Thereafter, NCB Officers proceeded to the residence of the learned Additional Chief Metropolitan Magistrate, E.O.II. With the permission of NCB Officers, DW7 talked to A2 who informed DW7 that he gave statement on account of threat and coercion by NCB Officers. He suffered swelling on both his knees. All the four persons were produced before the Additional Chief Metropolitan Magistrate, E.O.II. A2 also informed the Judge that he was beaten by NCB Officers. A2 also filed a petition under section 54 of the Code of Criminal Procedure. DW7 filed memo of appearance. The Additional Chief Metropolitan Magistrate, E.O.II directed DW7 to prosecute the petition in the regular court. The petition under section 54 of the Code of Criminal Procedure filed by DW7 on behalf of A2 was numbered as Crl.M.P.No.2189 of 2001. In the meantime, A2 appointed another advocate to deal with the case. 14. The Trial Court completely relied upon the evidence of P.Ws.1, 2, 7, 8 and 10 and the statements of A1 to A3 recorded under section 67 of the NDPS Act and returned the verdict of conviction as against the appellants/accused. The Trial Court also disbelieved the defence evidence effectively let in by A2 to establish that he sustained injuries on his person while he was in police custody and the statements under section 67 of the NDPS Act was obtained under threat and coercion. The Trial Court also disbelieved the documents produced from jail authorities relating to the injuries sustained by A1 on the ground that none of the accused came forward during the course of remand before the learned Additional Chief Metropolitan Magistrate, E.O.II that any one of them sustained injuries. The Trial Court placed credence upon the signatures of PW11 and PW12 found in the mahazar, the content of which was seriously disputed by PW11 and PW12. The Trial Court, having come to the decision that the statements given by A1 to A3 under section 67 of the NDPS Act could be the sole basis for recording conviction, convicted the accused as stated supra. https://hcservices.ecourts.gov.in/hcservices/ 15. The learned Senior Counsel appearing for the appellants would submit that the arrest of the accused and seizure of the material objects were completely stage managed by the prosecuting agency. The Trial Court has thrown to wind the potential materials found on record to establish clinchingly that A1 to A3 were subjected to cruelty during the course of interrogation made by NCB Officials. The Trial Court should have held that the statements recorded from the accused under section 67 of the NDPS Act were not given by the accused voluntarily. The Trial Court should have gone for a search of corroborative materials in the aftermath of the lack of support from the material witnesses PW11 and PW12 who were cited and examined in order to establish the mahazar, Ex.P8 prepared by NCB Officials showing seizure of the contraband. It is his further submission that the Trial Court failed to give equal weightage to the unequivocal evidence let in by the defence. The defence could establish that the accused were apprehended long prior to the alleged seizure of the M.Os. Therefore, he would submit that the accused are entitled to acquittal. 16. The learned Special Public Prosecutor for NCB would vehemently contend that conviction can be based solely on the statement recorded from the accused under section 67 of the NDPS Act. The prosecution has established in this case that the accused did give statements voluntarily and the same were recorded by the competent Intelligence Officers attached to NCB. Minor inconsistencies found on record cannot go to the root of the case. It is his further submission that the defence is making an attempt to blow out of proportion the alleged wounds found on the person of A1 and A2. It is a total lie to say that they sustained injury at the hands of the Intelligence Officers attached to NCB during interrogation. The Trial Court has rightly noted that no such complaint was lodged with the Judicial Officer who remanded the accused and that therefore, the defence that A1 and A2 sustained injuries under police custody could not be relied upon. The NCB officials have categorically spoken to the arrest of the accused, seizure of Narcotic contraband from them based on the furtive information received by PW1 and therefore, the defence set up by the accused does not hit the case of the prosecution in their favour. 17. Let me first test the case of the prosecution that there was a seizure on 12.9.2001 at about 4.00 pm near Pettucola Towers on the basis of prior furtive information received by PW1 at 10.00 am on the said day. https://hcservices.ecourts.gov.in/hcservices/ 18. On a careful perusal of Ex.P1, it is found that the incriminating message as against A4 R.Chellappa also was passed on by the confidential informer to PW1. It is to be noted that A4's residential address in Chennai was also furnished by the informer to PW1 who scrupulously recorded the same under Ex.P1. The overtact attributed to A4 was that he alongwith A1 procured heroin from North India. But, the name of A4 was not conspicuously associated with the occurrence that was expected to happen at 4.00 pm on 12.9.2001. It has been made clear by the informer as found from Ex.P1 that A4 was not going to arrive at the occurrence place viz., the road in front of Pettucola Towers. A4, having procured Narcotic drugs alongwith A1, has no proposal to further proceed on his own with the contraband. Prudence demands that the fourth accused, who associated with the procurement of Narcotic Drugs and not proposed to associate himself with the further smuggling activity, should be first apprehended before he became fugitive. No step was taken by the Intelligence Officers of NCB to apprehend him immediately after receipt of such vital information from the confidential informer. As rightly pointed out by the learned Senior Counsel appearing for the appellants, if at all such information was passed on to PW1 at 10.00 am itself on 12.9.2001, the NCB officials would not have waited so long a time to apprehend A4. 19. The fact remains that A4 was apprehended on 13.9.2001 and not on 12.9.2001. PW10 very leisurely issued summons to him for making his appearance for interrogation. In the remand report, Ex.P28 it was specifically mentioned that A4 was apprehended only on the basis of the statement given by A1 on 13.9.2001 under section 67 of the NDPS Act. PW8 S.Gunabalan, Intelligence Officer, NCB, Chennai has categorically admitted that only on the basis of the statement given by A1, A4 was arrested. As already pointed out by me, the first information, Ex.P1 supplies three sets of information about the fourth accused. Firstly, it refers to the involvement of A4 in procurement of contraband from North India. Secondly, it speaks about his non-association in the further smuggling activity embarked upon by the other accused. Thirdly, it gives the exact address of A4 in Chennai. Therefore, the NCB Officials, if at all Ex.P1 had come into existence at 10.00 a on 12.9.2001 itself, would not have waited till the revelation made by A1 as to the involvement of A4 on 13.9.2001. The above circumstances throws a grave doubt on the case of the prosecution that the first information was received by PW1 at 10.00 am on 12.9.2001 itself. 20. Adverting to Ex.P1, again, I find that there is a specific reference that the alleged contraband was under the possession of A2. https://hcservices.ecourts.gov.in/hcservices/ It is not as if his address was not furnished in the first information, Ex.P1. The clear address of A2 is found in Ex.P1. Surprisingly, no step was taken to proceed immediately to the house of A2 to seize the contraband in his possession. No prudent officer will wait from 10.00 am to 4.00 pm for literally seizing the contraband in accordance with the story reeled out by the informer to PW1. Lack of steps taken by the NCB Officials to seize the contraband forthwith, the moment concrete information was given as to the location of contraband creates a genuine doubt in the veracity of First Information received by PW1. 21. Ex.P33 is the communication emanated from PW7 P.J.Punnan, Assistant Director, NCB, Chennai to the Tahsildar, Egmore- Nungambakkam, Spur Tank Road, Chennai. The said communication, Ex.P33 bears NCB file number as 48/1/3/2001-NCB/MDS dated 12.9.2001. PW1, during the course of cross-examination, has clearly admitted that file number would be given by NCB office only after the seizure was effected. PW7, on his part, would depose that every information received by the NCB officials and acted upon may not result in seizure of contraband. It is his categorical version that if the information received and acted upon did not result in the seizure of contraband, no file number would be allotted by NCB office. On the basis of the aforesaid version of PW1 and PW7, I find that NCB would not have anticipated the seizure of contraband. 22. In the letter, Ex.P33, there was a reference that the drug trafficking was likely to take place near Pettucola Towers, Nowroji Road, Chennai at about 2.00 pm on 12.9.2001