1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 30.09.2011 CORAM THE HONOURABLE MS.JUSTICE R.MALA Crl.O.P.(MD).No.7420 of 2011 Murugan @ Manal Murugan : Petitioner -Vs- 1.The Home Secretary to the Government St. George Fort, Chennai – 9. 2.The Director General of Police, Kamarajar Salai, Santhome, Chennai – 4. 3.The Superintendent of Police, Narcotics Control Bureau Chennai Zonal Unit, C3-A, Rajaji Bhavan, Besant Nagar, Chennai – 90. 4.The Intelligence Officer, Narcotics Control Bureau, Chennai. : Respondents PRAYER: Petition is filed under Section 482 of the Code of Criminal Procedure praying to direct the 3rd respondent to conduct proper enquiry into the identity of the petitioner and his implication as an accused in connection with the case in NCB F.No.48/1/02/2006-NCB/MDS on the file of 4th respondent by considering the petitioner's representation dated 12.06.2011 within the time that may be stipulated by this Court. For Petitioner : Mr.M.Ajmal Khan For Respondent : Mr.A.Ramar,Govt. Advocate (Crl. Side) for RR1 and 2 Mr.C.Arul Vadivel @ Sekar Spl. P.P. For NCB Cases(Crl. Side) O R D E R This petition has been filed to direct the 3rd respondent to conduct proper enquiry into the identity of the petitioner and his implication as an accused in connection with the case in NCB F.No.48/1/02/2006-NCB/MDS on the file of 4th respondent by considering the petitioner's representation dated 12.06.2011 within the time that may be stipulated by this Court. 2.The learned counsel appearing for the petitioner would submit that the petitioner is an agriculturist in Tirunelveli District and he is also https://hcservices.ecourts.gov.in/hcservices/ 2 doing sand quarry from the period 1999 to till date. He was called as Murugan @ Manal Murugan in his locality. He would further submit that 5 cases in crime No.135 of 2008 on the file of Ayakudi Police Station, crime No.73 of 2008 on the file of Thevarkulam Police Station, Crime No.4 of 2009 on the file of Kangaikondan police station and Crime Nos.39 of 2009 and 85 of 2008 on the file of Seevalaperi Police Station have been registered against the petitioner. He would further submit that four petitions have been filed before this Court to quash the criminal cases against the petitioner and in Crl.O.P.(MD) Nos.468 of 2009 and 2258 of 2010, this Court was pleased to quash the complaint in crime No.5 of 2005 on the file of Kangaikondan police station and crime No.13 of 2009 on the file of the Seevalaperi police station and the respective Intelligence Officers in crime Nos.130 of 2008 and 73 of 2008 reported before this Court in Crl.O.P. (MD) No.2646 and 2645 of 2009 that they have dropped the charges against the petitioner and in one case, the petitioner was acquitted in S.C.No.50 of 2011 registered under Section 302 read with 34 I.P.C. 3.The learned counsel appearing for the petitioner would further submit that the 4th respondent implicated the petitioner adding alias name for the original accused Raja as Murugan @ Manal Murugan @ Raja. He would further submit that on 28.04.2011, the petitioner received an intimation from the Intelligence Officer, NCB, Chennai passing freezing order under Section 68 – F(i) of NDPS Act, 1985, showing his name is as Murugan @ Manal Murugan @ Raja and alleging that the petitioner has involved in a Narcotic case and non bailable warrant has been issued against him on 24.07.2006 and on enquiry, he came to know that he was roped into a Narcotic case said to have registered in the year 2006 and perusal of documents, the petitioner further came to know that in the year 2006, a case has been registered against one Thangathurai and 4 others and now, at the instigation of the local police personnel, 4th respondent roped his name in the case his name is Murugan @ Manal Murugan @ Raja and now he was implicated as accused in this present case and his bank accounts has been freezed. He would further submit that there is no material to connect the petitioner in the investigation done by the investigating officer and the statement given by the co-accused under Section 67 of N.D.P.S. Act would go to show that one Raja had involved in the offence along with the other accused and investigating officer, all of a sudden without any material implicated the petitioner in this case. He would further submit that the petitioner was in abroad on the date of the 1st occurrence as alleged by the prosecution and the endorsement has been made in the passport to that effect. The case was registered in the year 2006, whereas freezing order has been passed against the petitioner for the properties purchasing during the year 2001- 2003. The provisions of N.D.P.S. Act are stringent and any case investigated under this Act, it must be proved beyond any reasonable doubt. The action of the 4th respondent is maliciously foisting this case against the petitioner is violative of the petitioner's valuable right of fair investigation and trial, which flows from Article 21 of the Constitution of India. If the entire case is allowed to proceed, it will cause irreparable damages and loss to the petitioner's reputation and family and hence, it is necessary to entrust the case to the honest officer with a direction to further investigate into the identity of the accused and file charge sheet in accordance with law. https://hcservices.ecourts.gov.in/hcservices/ 3 4.He would further submit that on 12.06.2011 the petitioner preferred representation to the respondents 1 to 3 seeking their intervention in this case and to help the petitioner to get justice, but no action has been taken and hence, he has come forward with this application to direct the 3rd respondent to conduct the proper enquiry into the identify the petitioner and his implication as an accused in connection with the case in NCB F.No.48/1/02/2006-NCB/MDS on the file of the 4th respondent by considering the petitioner's representation dated 12.06.2001 within a time frame. 5.The respondent filed counter affidavit stating that on the basis of the specific information on 07.01.2006 that one Thangathurai is in possession of 4 kilogram heroin and he along with one Maria Siluvai will be transporting the said narcotic drug in a Yamaha motorcycle bearing Reg. No.TN 69 6838 to Tiruchendur for onward shipment to Srilanka by a launch arranged by one Mubarak and hence on 07.01.2006, the officers of NCB, SZU, Chennai seized 4.170 kilograms of heroinat opposite to Thermal Nagar Camp II Main Gate, Muthaiahpuram Road, Tuticorin and arrested persons viz., A.Thangathurai/A2 and S.Maria Siluvai/A2 and A1 Thangathurai @ Durai have given a statement under Section 67 of the NDPS Act, admitted that he was called by one Raja/A3 on 04.01.2006 to a place called Vallanadu and the said Raja came in a green colour Qualis car and handed over the heroin about 4 kilograms along with Rs.3,000/- and asked him to carry out the work as instructed by Gulam Mohamed. 6.It was further stated that after completion of investigation, the complaint has been filed before the N.D.P.S Court, Madurai on 03.07.2006 in NCB F.No.48/1/02/2006 NCB-MDS against five persons viz., A.Thangadurai @ Durai/A1, S.Mari Siluvai/A2 and the absconding accused viz., Raja/A3, Gulam Mohamed/A4 and Mubarrak/A5 and the complaint has been taken cognizance in C.C.No.479 of 2006 by the trial Court. It was further stated that as three accused were absconding, the case was split up against the absconding accused in C.C.No.306 of 2008 and non bailable warrant has been issued against them and on 19.06.2009, non bailable warrant issued by N.D.P.S. Court, Madurai was executed against A4/Gulam Mohamed and he was remanded to judicial custody and now the non bailable warrant issued against A3/Raja is pending for execution. 7.It was further stated that the police had sent a photograph of Murugan @ Manal Murugan and after approaching the N.D.P.S Court, as per the directions, enquiry was conducted with the remand prisoner and A1/Thangathurai @ Durai identified and confirmed that the photograph of Murugan @ Manal Murugan/petitioner herein forwarded by the police was that of the same person Raja, whom he had referred to in his voluntary statement dated 07.01.2006. 8.It was further stated in the counter affidavit that the material evidence have already been submitted to the trial Court that Raja/A3 as mentioned in the complaint and Murugan @ Manal Murugan are one and the same person. It was further stated that as regard the freezing order, after confirming that Murugan @ Manal Murugan is the same person Raja/A3, who was arrayed as accused in N.C.B.F.No.48/1/2/2006/NCB-MDS in C.C.No.306 of 2008, necessary action for financial investigation as envisaged in NDPS Act 1985, as amended, was initiated and freezing order dated 28.04.2011 was issued under Section 68 F(1) NDPS Act and the freezing order was also confirmed by the competent authority vide his order dated 23.05.2011 after giving https://hcservices.ecourts.gov.in/hcservices/ 4 opportunity to the petitioner Murugan @ Manal Murugan @ Raja to present his case and to appeal before the Appellate Tribunal for forfeited property as permitted by law. 9.It was further stated that all the materials evidences establishing that Murugan @ Manal Murugan and Raja are one and the same person and NBW has also been issued and he is abscond and evading arrest and hence, he prayed for the dismissal of the application. 10.Considering the rival submissions made by both sides, it is the case of the respondent that the person Raja mentioned by A1 in his statement recorded under Section 67 N.D.P.S. Act, is the present petitioner Murugan @ Manal Murugan. After the freezing order only, the respondent got the photograph of the petitioner and the same has been shows to A1 Thangathurai and he identified that he is the person, who handed over him 4 kilograms of heroin and Rs.3,000/- on 04.01.2006 at Vallanadu and directed him to carry out the instructions of Mubarak, who is a Srilankan and that person name is Raja/A3. Hence, as per the document filed by the respondent police, prima face revealed that A1 has identified the photograph of the petitioner and confirmed that the person is Raja/A3 from whom, A1 got the contraband. 11.Now, the learned counsel appearing for the petitioner would submit that the petitioner has given representation on 12.06.2011 for conducting proper enquiry into the identity of the petitioner and his implication as an accused in connection with the case in NCB F.No.48/1/02/2006-NCB/MDS on the file of the 4th respondent police. Perusal of the document filed by the respondent police has shown that on 18.02.2009, A1/Thangathurai has identified the photograph of the petitioner and confirmed that he is Raja/A3. Furthermore, it is pertinent to note that while passing the freezing order, an opportunity has been given to the petitioner to prefer an appeal against the freezing order. But, even though, the freezing order has been passed on 28.04.2011, the petitioner herein has given the representation on 12.06.2011 and he filed the present application on 20.06.2011. 12.Considering the facts and circumstances of the case, I am of the view that if the 4th respondent is directed to consider the representation dated 12.06.2011 given by the petitioner, no prejudice would be caused to the prosecution. 13.Accordingly, the 4th respondent is directed to consider the representation dated 12.06.2011 given by the petitioner and pass appropriate orders as to whether the petitioner is Raja, as mentioned by A1, within a period of one month from the date of receipt of a copy of this order. 14.With the above said direction, this petition is disposed of. Sd/- Assistant Registrar(T & P) /True copy/ Sub Assistant Registrar(CS) https://hcservices.ecourts.gov.in/hcservices/ 5 To 1.The Home Secretary to the Government St. George Fort, Chennai – 9. 2.The Director General of Police, Kamarajar Salai, Santhome, Chennai – 4. 3.The Superintendent of Police, Narcotics Control Bureau Chennai Zonal Unit, C3-A, Rajaji Bhavan, Besant Nagar, Chennai – 90. 4.The Intelligence Officer, Narcotics Control Bureau, Chennai. 5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1 CC to Mr.M.Ajmalkhan, Advocate, Sr.No.34650 arul Pre-Delivery order made in Crl.O.P.(MD).No.7420 of 2011 30.09.2011 TR : 13.10.2011 : 5p/7c https://hcservices.ecourts.gov.in/hcservices/