IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 12.01.2007 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN Crl.A.No.346 of 1998 The Intelligence officer, Narcotic Control Bureau, South Zone Unit, Chennai. .. Appellant/Complainant vs. 1.M.Shaik Mohammad 2.NMurugan 3.Kattin Durai 4.Rajeshyam Sharma @ More Sharma 5.Satish Ramlal @ Srikant Vajpayee @ Babloo 6.Mohanlal Ramlal @ Gopal Godavat .. Respondents/Accused Prayer: This criminal appeal has been filed under Section 378 of Cr.P.C against judgment dated 03.02.1998, in C.C.No.631 of 1995 on the file of the Special Court for the NDPS Act, Chennai. For Appellant : Mr.N.P.Kumar, Spl.Public Prosecutor for NDPS Cases, Chennai. For Respondents : Mr.Rajarathinam, Advocate, 4 to 6 as Amicus Curiae for R1 & 3 For Respondent No.2: Mrs. S. Jothivani JUDGMENT This appeal has been preferred by the State against the judgment of acquittal in C.C.No.631/1995 on the file of the Court of Special Judge for NDPS Cases, Chennai. The appellants/A1 to A6 charged under Section 8(c) r/w 21 and 29 of Narcotic Drugs Pshycotrapic Substance Act (hereinafter it will be referred as 'Act' for the sake of convenience). 2. The short facts relevant for the purpose of deciding this appeal are as follows:- https://hcservices.ecourts.gov.in/hcservices/ 2(a) The Intelligence Officer, Narcotic Control Bureau, South Zone Chennai, has filed a complaint after completing the investigation against the accused in F.No.48/1/5/95/NCB/MDS. After taking cognizance of the case, the trial Court has assigned C.C.No.631/1995. On specific intelligence, the Officer of Narcotic Control Bureau on 01.10.1995 searched the premises of one Shaik Mohammed (A1), at Door No.75, Lebbai Street, Pudupet, Madras in the presence of two independent witnesses and in the presence of Sheik Mohameed, which result in the recovery of about 1.500 Kgs of brown coloured powder believed to the heroin kept in two packets which were kept inside a cloth bag in an un-used kitchen of the second floor of the said premises. A mahazar containing the details regarding the search, seizure and drawal of samples from the seized contraband for the purpose of chemical analysis. The NCB Officer also searched STD Booth by name 'Kavita Telecom' at Door No.4, Langs Garden Road, Pudupet, Chennai, in the presence of one Kattin Durai(A2), the person incharge of the Booth , on 01.10.1995, at that time one Murugan (A3) was also available in the said STD Booth. As a result of the search conducted in the presence of witnesses, the Officers could recover about 2 kgs of heroin kept in second drawer of the table kept in the Booth. Another mahazar was drawn on the spot detailing search and seizure of drawal of sample contraband seized for the purpose of chemical analysis. On 01.10.1995, the Officers also searched Door No.206 & 207 of Hotel Rolex, Chennai-1, under occupation of one Rajeshyam Sharma of Mandsaur, based on some intelligence and recovered about 4.5 grams of brown colour powder, the heroin, from his pant packet. 2(b) After the search, Sheik Mohammed(A1) was interrogated and his voluntary confession statement was recorded under section 67 of the Act. A2-Murugan was interrogated and his voluntary confession statement was recorded under Section 67 of the Act. A3-Kattin Durai was interrogated and his voluntary confession statement was recorded under Section 67 of the Act. A4-Raheshyam Sharma was interrogated and his voluntary confession statement was recorded under Section 67 of the Act. Mohanlal(A5) and Satish(A6), alleged carriers of the contraband were also interrogated and they gave voluntary confession statement and the same were recorded under Section 67 of the Act. On the basis of the voluntary confession statements and on the basis of the material objects seized, the accused were arrested on 01.10.1995 and were produced before the additional Chief Metropolitan Magistrate, (EO), Egmore, Chennai, who remanded them to judicial custody. The samples drawn from the seized properties were sent to Chemical Examiner, Customs House, Madras-1, for chemical examination on 06.10.1995, through Special Court for NDPS cases, Chennai, and the expert's report revealed that the samples tested are Diacetyle Morphine, a narcotic drug prohibited under NDPS Act. 2(C) A1 to A6 with other known and unknown persons at Chennai, Mandsaur and other places entered into a criminal https://hcservices.ecourts.gov.in/hcservices/ conspiracy to do or cause to be done illegal acts viz., purchase, possess, conceal, import and export inter-state for the purpose of selling in India and for exporting out of India narcotic drug viz., heroin weighing totally 3.500 kgs. A1 to A6 have committed an offence punishable under Section 29 r/w 21 of the Act. In pursuance of the said conspiracy and in the course of the said transaction A4 procured the said 3.5 kgs of heroin and transported the same to Madras from Mandsaur during the last week of September 1995 along with A5 and A6 and therey A4, A5 & A6 have committed an offence punishable under Section 21 of the Act. In pursuance of the said conspiracy and in the course of the same transaction A2 received the said 3.5 kgs of heroin from A4 and handed it over to A1 during the last week of September, 1995 at Madras who in turn handed over 2 kgs of heroin to A3 to be kept in safe custody. In pursuance of the said conspiracry and in the course of the same transaction A1 was found in possession of 1.500 kgs of heroin on 01.10.1995 and thereby committed an offence punishable under Section 21 of the Act. In pursuance of the said conspiracy and in the course of the same transaction A2 and A3 were found in possession of 2 kgs of heroin on 01.10.1995 and thereby committed an offence punishable under Section Section 21 of the Act. Hence, the complaint. 2(d) On appearance and production of the accused, copies were furnished to the accused by the trial Court under Section 207 of Cr.P.C. When charges under Section 8(c) r/w 21 and 29 of the Act were framed against A1 to A6 and readover to A1 to A3 in vernacular language and A4 to A6 in Hindi through a translator, all these accused denied their complicity with the crime. 3. On the side of the prosecution P.W.1 to 9 were examined, Ex.P.1 to Ex.P.17 and M.O.1 to M.O.18 were marked. On the side of the accused D.W.1 was examined and Ex.D.1-Nominal Register of the Central Prison Hospital, was marked. Summons to D.W.1 issued by Court was marked as Ex.C.1. 4. 4(i) P.W.1-Vijayalakshmi, who is working as an Intelligence Officer in NCB, South Zone Region, in her evidence has stated that she is one of the Officers who gathered intelligence about the trafficking of narcotic drugs. On 30.09.1995 she along with two more officers filed an intelligence report at 9.00 pm to the Assistant Director who gave Direction. On 01.10.1995 herself (P.W.1) and the Assistant Director went to Door No.57, Lebbi Street, Chennai, along with two independent witnesses. Ex.P.1 is the intelligence report. On the basis of the intelligence report- Ex.P.1 they went to the above said house with two independent witnesses viz. Gurusamy and K.Sunilkumar, and found in the house one Sheik Mohamed(A1) along with his wife Sulthan Beebee, and two children and some other persons residing their. After showing the https://hcservices.ecourts.gov.in/hcservices/ identity card to them the above said officers informed them that they are going to conduct a search in the said house as per the provisions contemplated under the NDPS Act. 4(ii) When questioned as per the right conferred to them under the Act, as to whether they prefer to be searched before the Judicial Magistrate or before a Gazetted Officer, A1 replied that it is not necessary to take him before the Judicial Magistrate. At that time Mr.Krishnamurthy (P.W.9), a Gazetted Officer, who is above the rank of Assistant Director of NCB, was present and A1 said that the search can be conducted in P.W.9's presence itself. As a result of search, from an unused kitchen in the second floor a cloth bag was found. Inside the cloth bag two packets one small and one big were found. The packets were pasted with adhesive tapes. When the tapes were removed, there were two polythene covers placed one inside the other, were found. Two more polythene covers were found kept inside. They found inside the presence of brown powder. On enquiry A1 said that it was heroin, a narcotic drug. From both the bags small portion of brown powder were separately taken and tested with the help of test kit. The test answered for the presence of heroin. Bulk packet weighed approximately 1 kg and small bag weighed 500 grams. Inside the outer cloth the name 'Rolex Hotel' was found inscribed. The card marked as Ex.P.2 was also found there. On the backside of Ex.P.2, the name Rajesh Shyam Sharma was written both in English and Hindi and also Room No.206 & 207 were found written therein. Rajesh Shyam Sharma is the fourth accused in this case. When the contrabands were seized P.W.1 got the signature of A1 and two independent witnesses, besides she herself being signed therein with date. The samples are each weighing approximately 5 grams were taken from the packets and all the four samples were put in four small polythene covers and again they were put in four paper covers, pasted, sealed with NCB seal marked as S1 to S4, they are M.O.1 to M.O.4. P.W.1 has also taken signature of A1 and two more witnesses besides she also being signed on the same. 4(iii) After taking samples, balance of quantity of brown powder along with polythene cover were put in two big paper covers pasted sealed and marked as P1 and P2 respectively, they are M.O.5 & 6, wherein also P.W.1, two independent witnesses besides A1 signed. The brown powder found in M.O.1 is M.O.7. M.O.8 is the brown powder found in Ex.B.2. All the other packing materials were put in a paper cover and pasted, sealed and marked as M.O.9. All these thing were found in a cloth bag written in tamil as "Ayutha Pooja Vizha". These are all placed inside in P.3 by P.W.1, which is marked as M.O.9. The mahazar was prepared for the seizure of the contrabands in the presence of witnesses and the formalities were completed on 8.30 am. In mahazar also A1 and two independent witnesses have signed with date. P.W.1 has also signed in it. The Assistant Director of NCB also signed in it. The seal which was affixed in all the packages was affixed with fascimile of the seal. https://hcservices.ecourts.gov.in/hcservices/ Then a copy of the mahazar was given to A1 and A1 has given an acknowledgment. The mahazar is Ex.P.3. 4(iv) The seized properties were deposited with a forwarding memo in the godown of NCB Office. Forwarding memo is Ex.P.4 and the receipt is Ex.P.5. A report under Section 57 of the Act was submitted by P.W.1, which is marked as Ex.P.6. The said report was sent to Assistant Director Mr.s.Krishnamurthy as per Section 57 of the Act. 5. 5(i) P.W.2-Shanmugam, Intelligence Officer of NCB, Chennai, would state that before and after 01.10.1995 he was working as an Intelligence Officer of NCB. On 30.09.1995 at about 8.30 pm while he was working in the office his Assistant Director Thiru.Krishnamurthy has informed him that as per intelligence report near Egmore area about 3.00 kgs of heroin was concealed and a portion of it was kept in Door No.4, Longs garden, Pudupet, in a STD Booth by name 'Kavitha Telecom'. At that time it was 10.30 pm and the said STD Booth was found to be locked and when this fact was informed to his Assistant Director through wireless, who had asked him to stay in the same place to conduct surveillance and as per his direction he (P.W.2) spent the night there itself and on the following morning i.e., on 1.10.1995 at about 8.15 am, A2 and A3 came there with an yellow colour polythene bag and they opened the door of the STD Booth with a key and that he conveyed the said information to the Assistant Director. 5(ii) The Assistant Director has also informed P.W.2 to be ready to conduct a search in the STD Booth and for the said purpose he has requested him to arrange two government witnesses. When he approached the nearby residents requesting them to be a witness for search to be conducted in the said STD Booth, they refused. Immediately he contacted his Assistant Director and informed about his inability to secure two witnesses. Assistant Director inturn informed that he is conducting a house search at Pudupet in the presence of two witnesses and he will bring them to the said STD Booth and the search can be conducted in their presence. The Assistant Director and the first accused along with some officials came to STD Booth at about 8.45 am and as per the instructions of the Assistant Director he served a summon to A1 who had informed him that he will accompany P.W.2 to the office. 5(iii) When STD Booth was searched, they could find A2 and A3 in the Booth. Ex.P.7 is the summon issued to A1 by showing his identity card, P.W.2 informed that in the presence of two witnesses he is going to conduct search in the said STD Booth under the NDPS Act. When it was informed by P.W.2 to A2 & A3 if they want they can conduct a search on the witnesses and the officials who were present their. When the mandatory provisions under Section 50 of the Act was complied with by informing the accused whether they want the search to be conducted before a Judicial Magistrate or before a Gazetted Officer, A2 and A3 replied that https://hcservices.ecourts.gov.in/hcservices/ there is no necessity for it and informed P.W.2 that he (P.W.2) himself can conduct the search. Anyhow, the said search was conducted before the Government Gazetted officer, Mr.S.S.Krishnamurthy, who was working as the Deputy Director of NCB. In search he could find a yellow colour polythene bag in the second drawer of an iron table, which was identified by P.W.2 as the son brought by A.2. When the said yellow bag was opened he could see two big packets in it. When the said packets were opened he could see a cloth bag which contained two polythene bags inside. P.W.2 could see brown colour powder in two polythene bags. When he enquired about this both A2 and A3 replied that it was heroin. The first bag weighed 1 kg. The second bag on measuring also weighed about 1 Kg. Two samples weighing each 5 grams were taken from the seized contraband and placed it in a paper cover and sealed the same after assigning the mark P1 in the cover. M.O.10 is the said cover. From the second bag also he took two samples weighing each 5 grams and also has kept the same in a paper cover and sealed the same. M.O.11 is the said bag. He has also assigned S3 and S4 to the samples taken from the two packet. Both the accused and P.W.2 have singed in the property recovered. 5(iv) He has also prepared inventory for the material objects seized by him, which was marked as Ex.P.3. Ex.P.3 was also sealed with NCB seal. S1 and S2 are M.O.12 and 13. The packing materials are Ex.P.16 and he, two witnesses and the accused were singed in the same. He has also enquired A2 and A3 about the source through which they got the contraband (subject to the objection raised by the other side). The accused have informed the Court that both A2 and A3 along with A1 had purchased 3 ½ kgs of heroin from A4 and both A2 and A3 had admitted that a portion of the heroin thus purchased was with the possession of A1 and remaining portion of the heroin is with them(A2 & A3). A2 has handedover a visiting card of a hotel and informed that A4- Rajeshyam Sharma is residing in the said hotel. In the visiting card the name Rolex Hotel, NSC Bose Road, Chennai-1, was written in English and Hindi. A2-Murugan has informed P.W.2 that A4-Rajeshyam Sharma is residing at Room No.206 & 207 of the said hotel. The visiting card and other materials were seized under Ex.P.17- mahazar, in which both the accused and both the witnesses and P.W.2 have signed. P.W.2 soon served summons to both A2 and A3. Ex.P.8 is the mahazar for the contraband seized from A2 and A3. Ex.P.9 is the summon issued to A2 and Ex.P.10 is the summon issued to A3. Both A2 and A3 have also identified A1 and informed P.W.2 that the remaining contraband is only with him. P.W2 took A1 to A3 in his car to his office. 5(v) P.W.2 has handedover the material objects collected from the accused to the Assistant Director for safe custody in the godown in his office. For that purpose he has prepared a forwarding memo to his Assistant Director who arrived at the office at about 10.30 pm. After handing over the material objects along https://hcservices.ecourts.gov.in/hcservices/ with memo he recorded the confession statement of A1 at 3.00 pm and recorded the confession statement of A2 at 4.00 pm. Since A2 is an illiterate the confession statement of A2 was recorded by A1 as narrated by him(A2). A3 has given a voluntary statement. Ex.P.11 is the confession statement of A1. Ex.P.12 is the confession statement of A2. Ex.P.13 is the confession statement A3. Ex.P.14 is the arrest card for A1. Ex.P.15 is the arrest card for A2. Ex.P.16 is the arrest card for A3. Ex.P.17 is the forwarding memo given by P.W.2 for the seized articles to be kept in the office godown. Ex.P.18 is the receipt issued ho him in the godown. 5(vi) He has arrested the three accused and kept in his custody and produced them before the Court for remand on the next day at about 2.00 pm. A1 to A6 were taken to the Judicial Magistrate at Mugapair. But after coming to know that the Metropolitan Magistrate of Egmore himself is empowered to remand the accused under the Act, he has produced A1 to A6 before the Metropolitan Magistrate for judicial custody. As per the orders of the Magistrate, he had produced the seized contraband before the Special Court for NDPS case, but as per the instructions of the Court he kept those seized properties in the godown in his office. He has submitted a report to his higher official under Ex.P.20 under Section 57 of the NDPS Act. 6. P.W.3-Mr.Shasthri, an Intelligence officer of NCB, Chennai, an empowered officer under NDPS Act, would depose that on 05.10.1995 he produced the material objects connected with this case before the Court, which caused to weigh the said material objects with the help of a balance brought by the Court staff. Thereafter, he produced the sample for chemical examination at customs house, Chennai, as per the directions of the Court. He filed an affidavit seeking custody of A4 to A6 for further interrogation and after completing the interrogation he surrendered A4 to A6 on 15.10.1995 before the Court. Ex.P.21 is the memo for surrendering the properties in the Court. Ex.P.22 is letter of direction to send the samples to the customs house for analysis. Ex.P.23 is for taking custody of A4 to A6 for interrogation. The voluntary statement of A4 to A6 is Ex.P.24 to Ex.P.26. The above said accused have given the statement in Hindi and English language and the translation was done by P.W.3 himself since he is conversant with both Hindi and English languages. A5 and A6 have also given correct names in Ex.P.24 to Ex.P.26. Ex.P.27 is the test memo. The copy of charge sheet and FIR collected from Hyderabad relating to A4 are Ex.P.28 and Ex.P.29 respectively. panchanama drawn at Hyderabad is Ex.P.30, which was marked subject to the objection. Ex.P.31 is the booking of travel tickets for A4 to A6 from Bhopal to Madras. https://hcservices.ecourts.gov.in/hcservices/ 7. 7(i) P.W.4-K.N.Sridaran is the Inspector of Customs and Excise Department at Ranipet. He was working in NCB as an Intelligence Officer at Chennai from 01.11.1995 to January 1997. He is an authorised officer under NDPS Act and under Section 67 and 42 of NDPS Act. He had issued summons to Mr.Samuvel Raj, owner of the STD Booth, viz. Kavitha Telecom, No.4, Langs Garden Road, Pudupet, Chennai. The said Samuvel Raj was asked to appear on 23.11.1995 at 2.00 pm to NCB Office, Chenni. Ex.P.32 is the served Memo. 7(ii) As per the summons, the said Samuvel Raj appeared himself in the said office on 23.11.1995 at 2.30 pm. He was asked to explain regarding the seizure of 2 kgs of heroin from the above said STD Booth, (Kavitha Telecom, No.4, Langs Garden road, Pudupet, Chennai) on 21.10.1995. Ex.P.33 is the statement of Mr.Samuvel Raj. According to him his brother Kattin Durai(A3) was in permissive occupation of the said STD Booth and the A1 and A2 used to visit the said STD Booth often. Samuvel Raj has also identified Sheik Mohammad, Murugan and Kattin Durai, in the photo shown to him by P.W.4 and he has also signed in the copy of the photo. Ex.P.33 is the xerox copy of the photo of the person identified as Kattin Durai and Ex.P.35 is the xerox copy of the photo of the person identified as Murugan and Ex.P.36 is the xerox copy of the photo of the person identified as Sheik Mohammad by the said Samuvel Raj. 7(iii) On 23.11.1995 P.W.4 issued summons to Azizur Rahman and Narayanan Nair, who are working as receptionist and Manager respectively in the Rolex Hotel at NSC Bose Road, Chennai, to appear before him on 24.11.1995 at 10.00 am. Ex.P.37 is the summon served on Azizur Rahman and Ex.P.38 is the summon served on Narayanan Nair. When Azizur Rahman was asked to say about the facts known to 4 ½ grams of heroin seized on 01.10.1995 at Rolex Hotel, he gave a statement(Ex.P.39). He ha further disclosed that on 29.9.1995 Room.No.206 was allotted to Rajeshyam Sharma and Room.No.207 was allotted to Sheyam in Rolex Hotel. He has further deposed to the effect that on 01.10.1995, Azizur Rahman was asked to be a witness for the seizure of the contraband in Rolex Hotel. 7(iv) He has also informed that Narayanan Nair was also requested by NCB to be a witness in the above said seizure. When Rejeshyam Sharma was staying in Room.No.206 of Rolex Hotel, the NCB officials interrogated him and at that time Rajeshyam Sharma produced from his pocket 4 ½ grams of heroin powder, was also stated in detail in the statement given by Azizur Rahman. Azizur Rahman has further disclosed in his statement that the name of the person who stayed in Room No.206 is not Rakesh, but it is Rajeshyam Sharma and the name of the person who stayed in Room No.207 was not Shyamlal, but Sathish Ramlal Ramlal. Azizur Rahman has also identified A4 to A6 in the xerox photo shown to him. Azizur Rahman has also produced checkin register and counterfoil of the receipt issued to the person who had stayed in Room.No.206 and https://hcservices.ecourts.gov.in/hcservices/ 207. Ex.P.40 to 42 are the xerox photo of A4 to A6 containing the signature of Azizur Rahman. Ex.P.43 is the xerox copy of checkin register. Ex.P.44 and 45 are the counterfoil receipts relating to Room No.206 and 207. 7(v) At the time of interrogation of Narayanan Nair, since he could not write his statement, Azizur Rahman wrote the statement given by Narayanan Nair. Narayanan Nair also identified A4 to A6 in the photos(Ex.P.47 to 49 respectively) and in proof thereof he has also signed in the said xerox copy of the photos. P.W.4 had issued summons to Sunil Kumar on 7.12.1995 requesting him to appear before NCB Office on 11.12.1995 at 2.00 pm. He has also given a voluntary statement narrating the incident. Ex.P.50 is the summon issued to Sunil Kumar and his statement is Ex.P.51. Sunil Kumar know to speak