IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.10.2010 CORAM: THE HON'BLE MR.JUSTICE C.T. SELVAM Crl.A.Nos.60 and 100 of 2009 1. Hidayathkhan 2.Ilayathambi Thevarasa @ Rajan ... Appellants in Crl.A.No.60/2009 /Accused- 3 &5 1. Meeran Saibo Zimzar 2. M. M. Sadurudeen @ Deen 3. S. Paul Samuel @ Kumar 4. Sehuthamby Shihab ... Appellants in Crl.A.No.100/2009 /Accused- 1,2,4 & 6 vs. State by The Intelligence Officer Narcotics Control Bureau South Zonal Unit, Chennai. ... Respondent/ Complainant in both Crl.Appeal Prayer:- These Criminal Appeals are filed under Section 374 of Cr.P.C. praying to set aside the judgement and conviction of the appellants/accused passed in C.C.No.347 of 2002 dated 31.12.2008 by the Principal Special Judge, Principal Special Court under EC & NDPS Act, Chennai-104. For Appellants : Ms. Geetha Ramaseshan Appeal for appellant/ A3 in Crl.Appeal.No. 60/2009 Mr. T.K. Sampath for T.K. Sampath Associates for appellant/ A5 in Crl.Appeal.No. 60/2009 Sri.S. Shanmugavelayutham, Sr. Counsel for Mr.Vijayaraghavan for appellants/ A1,2,4 & A6 in Crl.Appeal.No. 100/2009 For Respondent : Sri.R. Dhanapal Raj, Spl.PP for NCB Cases in both Crl.Appeal.s https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T These two appeals arise against the judgement of the learned Principal Special Judge, Principal Special Court under EC & NDPS Act, Chennai-104, in C.C. No.347 of 2002 dated 31.12.2008. The lower court had convicted the appellants herein and passed sentence against them, as follows: Accused No. Charges Sentence [to run concurrently] A-1 8(c) r/w.21(c), 23, 27 (A), 28 and 29 of NDPS Act, 1985 as amended by Act, 9/01. to undergo 11 years Rigorous Imprisonment each offence and to pay a fine of Rs.1,00,000/- for each offence, in default to undergo 6 months RI for each offence; A-2,3, 5 & 6 8(c) r/w.21(c) and 29 of NDPS Act, 1985 as amended by Act, 9/01. to undergo 11 years Rigorous Imprisonment each offence and to pay a fine of Rs.1,00,000/- for each offence, in default to undergo 6 months RI for each offence; A-4 8(c) r/w.21(c), 23 and 29 of NDPS Act, 1985 as amended by Act, 9/01. to undergo 11 years Rigorous Imprisonment each offence and to pay a fine of Rs.1,00,000/- for each offence, in default to undergo 6 months RI for each offence; 2. The prosecution case in brief is that the investigating officer PW-1 received information at 18.00 hours on 17.05.2002 through telephone that first and second accused who are Sri Lankan Nationals were engaged in drug trafficking between Chennai and Sri Lanka and that they were staying at Hotel Regal, Egmore, Chennai and Hotel Indian Palace, Moore Street, Chennai towards procuring 45 kilos of Heroin from the third accused who was from Gujarat and who also was staying at the Hotel Indian Palace and that the accused intended to transport the same to Kanyakumari Coast by using a Tata Sumo vehicle bearing registration No.TN 22 P 9597 in the early hours of 18.05.2002, towards export thereof through sea to Sri Lanka, by A-4 who also had arrived and was staying at a lodge in Chennai and that A-1, A-2 & A-4 were likely to travel with A-5 and A-6 both Srilankans to Kanyakumari, in the said Tata Sumo vehicle, with the narcotic substance which would be kept concealed in the vehicle. PW-1 reduced the same into writing, read it over to the informant over telephone and after confirming the correctness thereof, submitted the same to his Superintendent, who endorsed the same. PW-1 had been informed that the Tata Sumo vehicle was likely to cross Maduranthakam area at GST Road at 5.30 a.m on 18.05.2002 and on the instructions of the Superintendent, PW-1 and other officers of NCB Chennai proceeded by their office mini bus to the said spot along with two independent witnesses at about 5.00 a.m on 18.05.2002. As anticipated and after 30 minutes, the Tata Sumo Vehicle bearing registration No.TN 22 P 9597 was spotted and stopped by the officials. The driver reversed the vehicle at great speed and hit a concrete electric pillar causing https://hcservices.ecourts.gov.in/hcservices/ damage to the rear door of the vehicle and stopped the vehicle. First, second, fourth, fifth and sixth accused were in the vehicle. The officials informed their intent to search the vehicle to the 5 persons and explained their rights under section 50(1) of the NDPS Act, (hereinafter called the Act) and upon the accused not having any objection, conducted search. On enquiry the accused identified themselves and on being asked the first accused informed of the concealment of heroin inside the body and rear door of the Tata Sumo vehicle and thereafter extricated and produced 42 packets of contraband. Use of the Field Test Kit revealed that the substance in the 42 packets was heroin. Requisite samples were taken. The samples and remaining contraband duly were sealed. Materials gathered through personal search of the accused persons were placed in sealed covers. The Tata Sumo vehicle was seized. The process of seizing, sampling, sealing and the formalities connected therewith were effected in the presence of two independent witnesses. PW-3 along with other officials had gone over to the hotel where the third accused was staying, identified themselves to the third accused, informed him of his rights under Section 50 of the Act and searched the room. No contraband was found. That which was recovered from the person of the third accused was placed in a sealed cover. The Maduranthagam police who had visited the place, informed of the report from the Electricity Board about the damage of the pillar, whereupon PW-4 and PW-6 informed them of the incident. Such police accompanied by the NCB officers took the driver, the fourth accused and the Tata Sumo vehicle to the police station. After enquiry the NCB Officers requested the officials of Maduranthagam Police station and brought the fourth accused for further enquiry. Pursuant to summons issued to various accused, under Section 67 of the Act, statements were recorded. The samples of the contraband had been sent for chemical analysis and the chemical analysis report confirming that the substance was heroin, was received. PW-4 had deposited the contraband with NCB godown. After recording the statements, accused were arrested and remanded to custody, by producing them before the IX Metropolitan Magistrate. 3. Before the trial Court, the prosecution examined PWs 1 to 9 and marked Exhibits P-1 to P-90 and material objects MO Nos.1 to 132. On the side of the defence DW-1 was examined and exhibits D-1 to D-8 were marked. The lower court, on appreciation of evidence, arrived at the conclusion of guilt of the accused and sentenced them as aforestated. 4. Ms. Geetha Ramaseshan, learned counsel appearing for the third accused/ appellant in Crl.A.60/2009, would contend that section 67 statement informing the culpability of the accused had been rendered by the third accused in Gujarathi, which was his mother tongue. While according to prosecution, third accused had received https://hcservices.ecourts.gov.in/hcservices/ the contra band from the driver of the lorry bearing No.GJ 7867 at about 11.30 pm on 17.8.2004, no effort had been taken to seize such vehicle. Exh.P-71, a letter dated 2.7.2002 by PW-9 to the Superintendent, NCB calling for the search of the premises of Roshan Khan at Rajasthan would reflect the position that the prosecution was under the impression A3 Hidayat Khan went under another name Roshan Khan. This was a mistaken impression as made abundantly clear from the letter of the Zonal Director, NCB, Jodhpur Zonal Unit, Jodhpur (Exh.P-72) and in response to Exh.P-71, wherein it has been informed at paragraph 4: '4. Further, in your letter it has been mentioned that Hidayat Khan, who is having another name 'Roshan Khan' has been arrested by NCB, Chennai whereas Rosham Khan R/o Akhepur is very much present in the village itself. This may please be clarified for further development at our end.' The role attributed to third accused is drawn from the information received by PW-1 and recorded in Exh.P-1. PWs-1, 3, 7 & 8 had referred to third accused but not in any manner as would implicate him. Of the 9 prosecution witnesses, 5 were official witnesses. PW- 5 was the scientific expert.It is only towards falsely implicating third accused that his section 67 statement was made to reflect the position that A-1 was produced before him and he had identified him. Section 67 statement of third accused had been retracted on 17.4.2003. Referring to Exh.P-66, section 57 report of PW-8, which informed that PW-8 had assisted third accused in recording his section 67 statement, learned counsel would inform that the use of the word ‘assisted’ would go to show that the section 67 statement of third accused was not voluntary. Therefore such statement had no evidentiary value and in the absence thereof, there was nothing to implicate third accused. It is also submitted that though PW-1 was aware of third accused being at the hotel at Chennai even on the evening of 17.5.2002, no efforts had been taken to nab him till after the alleged occurrence at 5.30 a.m on the next morning at Chennai- Trichy GST Road. According to PW-1 two independent witnesses by name Pakkirisamy and Rajendran were present at the time of initial apprehension of the accused party. They had also attested the Mahazars prepared at the spot, as also the seized properties, samples and documents. The fact of A-1 having identified third accused who was produced before such accused while recording his 67 statement was not informed in the 57 statement of PW-1. As against the evidence of PW-8 that he had accompanied PW-3 to search the hotel room of third accused and that he was a witness to what transpired there, Exh.P-23 the mahazar prepared at such hotel did not contain his signature. Two independent witnesses had attested such mahazar and they have not been examined. The mahazars have been prepared in Tamil, a language https://hcservices.ecourts.gov.in/hcservices/ not known to the third accused and there is nothing to show that the independent witnesses knew Hindi, so as to make acceptable the endorsement of PW-3 that the contents had been explained to the accused in Hindi. 5. Informing the above discrepancies learned counsel would submit that from the reading of the depositions of PW-8 along with the relevant exhibits this Court would infer that the section 67 statement of third accused was not voluntary and that PW-8 had not been present at the time of his apprehension at the hotel room and during the search conducted by PW-3. The above aspects have not been considered by the lower court leading it to arrive at an erroneous conclusion. By way of final submission it is stated that there was no animus possidendi, so far as third accused was concerned and even if not inclined to acquit this court would consider the fact of the accused have been in custody for a period of 8 years and reduce the sentence. 6. Learned senior counsel Sri. Shanmugha Velayutham appearing for the petitioners in Crl.O.P.No.100 of 2009/ accused 1, 2, 4 & 6 submitted that the fact of the section 67 statement of all the accused being involuntary and a product of coercion could be gauged from the fact that the same were commenced on the night of 18.5.2002 and then elaborated on 19.05.2002 as all of them had allegedly claimed to be tired on the night of 18.05.2002. If such was the position as regards one accused the same may be acceptable. But that all the accused had followed the same pattern of conduct would only reflect the position that they had been led by the nose and their statements were not voluntary. It was a common well known practice of the NCB that the arrest would be effected after the recording of the statements of the accused. In the instant case, the arrest memos of the accused did not reflect the recording of their statements. Exh.P-13 mahazar recording the search and seizure effected from 5.00 a.m to 2.00 p.m on 18.05.2002 bears the signature of PW-1. Exh.D-7, the section 57 report submitted by PW-1 in another case informed that the same had been prepared at Chennai at 09.00 hours on 18.05.2002. PW-1 could not have been present at two different places at one and the same time. Therefore, it would have to be inferred that PW-1 was not present at the search and seizure, allegedly effected from 5.30 a.m on 18.5.2002 and as recorded in Exh.P-13. DW-1 the Sub Inspector of Police, Maduranthagam who had dealt with the case of accident and damage caused to the electric pillar owing to the hurried reversal of the Tata Sumo vehicle used by the accused spoke only about A-5. He neither had spoken to the presence of the other accused nor to the seizure of contra band. The seizure of contra band had been effected on 18.5.2002 and sent for chemical analysis on 30.05.2002. The chemical analysis report Exh. P-39 was dated 5.9.2002 and the test report along with Remnant https://hcservices.ecourts.gov.in/hcservices/ samples sealed by the Chemical Examiner, Custom House, Chennai had been handed over to NCB officials on 19.09.2002. There was no explanation of where and by whom the Remnant samples were held between 5.9.2002 and 19.9.2002. Learned senior counsel would refer to Section 32-B of the Act and inform that the reasons stated by the lower court for awarding more than the minimum sentence of 10 years were not in keeping with the judgment of the Division Bench of this Court reported in Yasser Arafat v. Intelligence Officer, NCB (2009) 3 MLJ (Crl) 225. Learned senior counsel would submit that the afore- stated facts would reveal that all was not well with the prosecution case and the accused ought to be acquitted. He would state that if this court was not inclined so to do, this court would reduce both the substantive sentence as also that imposed in default of payment of fine. 7. Sri T.K. Sampath, learned counsel appearing for the fifth accused would submit as follows : The fifth accused had been arrested by the Maduranthagam police. DW-1 who informed of having arrested him on account of the accident involving the Tata Sumo Vehicle had spoken to the presence of several accused and of the NCB officials and of having released them on bail to the NCB officials. He had categorically stated that no contraband was seized from the vehicle and of the NCB officials taking return of the vehicle at 3.30 pm., after the same was produced before the Motor vehicle inspector. Thus, as the vehicle was in custody of local police and no contraband was seized there from, the prosecution version of the seizure was false. Exh.P-13 Mahazar, which spoke of all that transpired between the prosecution party lying in wait in the early hours of 18.05.2002 and the seizure of the contraband i.e. between 5.30 am and 2.00 pm, had been drawn up even before the accident involving the vehicle of the accused since it exhibited the position that the same was prepared from 5.00 a.m onwards. Though the prosecution has cross examined DW-1, the prosecution case had not been suggested to him. Mere knowledge that the other accused held narcotic substance would not amount to commission of offence. Unless A-5 shared the intention of the other accused, he could not be held to have participated in a criminal conspiracy. He was only the driver of the vehicle and the owner thereof had not been examined. Exh.P-13 had been prepared from 5.00 a.m onwards. According to PW-1 the vehicle had been stopped at 5.30 a.m. Therefore at 5.00 a.m no offence could have been committed by A-5. Exh. D-7 was the report of PW-1 u/s.57 of NDPS Act in some other case, wherein PW-1 had recorded the statement of an accused and assisted the other officials in completing the remand formalities and lodging such accused in Central Prison, Chennai. Exh.D-7 report had been drawn up by PW-1 at 9.00 hours on 18.05.2002 and in circumstance where PW-1 had not spoken to his having left the scene of occurrence in this case in between, it would not have been possible for him to have been at the scene of https://hcservices.ecourts.gov.in/hcservices/ occurrence in this case at 5.30 a.m. Hence, his presence as recorded in P-13 necessarily was false. This is why, in Exh.P-13 reads as '5.00 a.m onwards'. The explanation of PW-1 in the course of cross examination and 1½ years after the occurrence that the time had by mistake been mentioned in Exh.D-7 as 9.00 hours instead of 19.00 hrs. ought not to be accepted. Till the release of A5 on bail in the accident case by the Maduranthagam police, he had been in their custody. Exh.D-8 of the charge sheet in the accident case. The first information report and the charge sheet would show that only A- 5 was an accused in such case. Therefore, there had been no necessity to arrest the other accused and while DW-1 had spoken to plurality of the accused there was nothing to show who they were. The above circumstances laid bare the falsity of the prosecution case and hence the accused ought to be acquitted. It is also submitted that one of the retracted confessions of A-5 had not been sent to court. Learned counsel would submit that this was a case where A-5 was in police custody having been arrested in connection with the accident involving the vehicle used by the accused and as such his statement would suffer the bar made applicable u/s.26 of the Evidence Act. Learned counsel would rely on the submission of PW-4 that A-5 had been arrested at 11.30 p.m on 19.05.2002 and submitted that there has been no reason that was forthcoming as to why such accused had not been arrested immediately on completion of his section 67 statement. He would state that the section 67 statements of such witness did not elaborately inform the details of the occurrence, apprehension of accused and seizure of narcotic substance and hence such witness had not satisfied himself regarding the truth or otherwise of what was stated in the section 67 statement of A-5. He would make much of the fact that PW-4 had not stated when and where summons had been issued to A-5. 8. In response to the above submissions made on behalf of the accused, learned Special Public Prosecutor would state that the involvement of all the accused stood borne out from the fact that the very information received and recorded in Exh.P-1 informed all their names. PW-1 had submitted Exh.P-1 to the superior officer on the very same day i.e. 17.05.2002 and such superior officer, the Superintendent NCB, Chennai had on such date endorsed: ‘Seen. Take action as proposed’. The Mahazar, Exh.P-13 recording what had transpired necessarily would be recorded at the end. PWs. 2, 3, 4, 6 & 7 had witnessed the search and had spoken thereto, though they had not signed the Mahazar Exh.P-13. It was quite natural that the accused persons who had been apprehended in the early hours on 18.05.2002 had all claimed to be tired late in the day and it was incumbent upon the investigating officials to allow them to rest and hence nothing sinister could be read into the prosecution case from such position. The accused had made voluntary statements and the retractions were an after thought. He would explain that in the statement of retraction, Exh.D-5 dated 28.05.2008, A-5 had disowned https://hcservices.ecourts.gov.in/hcservices/ the earlier retraction statement and as such the same had not been sent to court. Third accused had been subsequently arrested and as reflected in Exh.P-15 the section 67 statement of the first accused he had been brought and identified by A-1 and had also signed Exh. P-15. Similarly, A-2 had also been identified by third accused in his Section 67 statement, Exh.P-57. So too, A-5 in his Section 67 statement identified A-1, Exh.P-29. Regarding the contraband seized in the case, PW-4 had spoken to the production thereof as also the accused before the IX Metropolitan Magistrate at around 8.00 a.m on 20.05.2002, of the direction of such Metropolitan Magistrate and of the production of the accused and the contraband and records before such Magistrate during working hours as required by him, for remand of the accused. In keeping with the direction of the Magistrate, PW-4 had deposited the contra band goods with the custom house on 30.05.2002. The forwarding memo was prepared by him under Exh.P-33 and the contraband was submitted before the Deputy Director who had thereafter, handed over to him the godown receipt Exh.P-34. Pursuant to Exh. P-35, dated 24.05.2002 the requisition for chemical examination, learned Spl. Judge had ordered the same under Exh. P-36 on the same day. PW-4 had informed that the chemical analyst had acknowledged the receipt of the samples on Exh.P-36 itself. Though the chemical examiner’s report Exh.P-39 was dated 5.9.2002, at the end thereof it had been clearly stated that the samples duly sealed had been handed over to an official of NCB on 19.9.2002. Thus, not only had the contraband been duly deposited in the godown but the handling of the samples also stood properly explained. There was no prescribed format for recording section 57 statement. Use of the word 'assisted' in relation to recording of section 67 statement of third accused only would have to be read as a reference to recording thereof and too much could not be made of it, particularly placing a reading therefrom that the statement was not voluntary. A reading of Exh.P-23 mahazar, recorded at the hotel room of third accused would show that the same had been explained to him in Hindi. From DW-1’s evidence the attempt of the accused to escape stood made out. Exh.P- 30, the mahazar recorded at the spot had been completed at 2.00 p.m on 18.5.2002 and thereafter summons had been issued then and there, as could be seen from the evidence of PW-1. From the fact that DW-1 spoke to the registration of the FIR in the accident involving the vehicle of the accused at 2.05 p.m, it could be seen that such case, came to be registered only after the entire proceedings relating to the apprehension of the accused and seizure of the contraband had been completed. PW-1 had duly clarified that in the report under Section 57 in Exh.D-7, the time wrongly had been noted as 09.00 hours instead of 19.00 hrs. In the present case the entire mahazar proceedings had been completed and all the accused were at the NCB office at 5.00 pm. Though a submission was made on behalf of the accused that there was delay in forwarding the samples for chemical examination, the chemical analyst report, Exh.P-39, informed that all the seals were intact and tallied with facsimile given in the forwarding letter. The prosecution case rested not merely on the https://hcservices.ecourts.gov.in/hcservices/ confessions of the accused. In keeping with the information received the accused have been apprehended and seizure of contraband effected. All the accused had conscious knowledge of possession of contraband. The information received and the statement of the investigating officers had to be read along with the evidence of the prosecution witnesses and once the same reflected trust worthiness there is no need to examine any independent witnesses. So far as third accused was concerned, he had been named in the information received and the other accused had been found in possession in keeping therewith. He had been produced while recording the statement of A-1 and identified by such accused. Learned Special Public Prosecutor would refer to the section 67 statement of the fifth accused which reflected the position that the same had been recorded voluntarily without any coercion. In the above circumstances, it is submitted that the prosecution case suffered no lacuna and hence the finding of conviction and sentence imposed by the trial court ought to be confirmed. 9. Decisions are relied upon by the counsel, which, to the extent necessary, are discussed herein below: Ms. Geetha Ramaseshan referred to