IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01/08/2003 CORAM THE HONOURABLE MR.JUSTICE M. CHOCKALINGAM CRIMINAL APPEAL NO.868 OF 2000 AND CRIMINAL APPEAL NO. 928 OF 2000 1. R. Paulsamy .. 1st Appellant in CA 868/00 2. Gladys Lilly .. 2nd Appellant in CA 868/00 and Respondent in CA 928/00 -Vs- Superintendent, Narcotics Control Bureau, South Zonal Unit, Chennai. .. Respondent in CA 868/00 and Appellant in CA 928/00 These criminal appeals are preferred under Section 374 of Cr.P.C. against the judgment of the learned Special District and Sessions Judge for EC Act and NDPS Act Cases, Madurai in C.C.No.521 of 1998 dated 1 5.9.2000. !For Appellants : Mr.B.Kumar, Senior Counsel in CA 868/00 for Mr.S.Shanmugavelayutham and Respondent in CA 928/00 ^For Respondent : Mr.P.N.Prakash in C.A.868/00 Special Public Prosecutor, and Appellant N.C.B. in CA 928/00 :COMMON JUDGMENT This judgment shall govern both the criminal appeals, and the parties hereinafter will be referred to as per the cause title in C.A.868 of 2000 namely appellants/A-1 and A-2 and respondent. 2. The appellants, who were arrayed as A-1 and A-2 respectively and who were charged and tried namely A-1 under Ss 8(c) read with 21 and 29 of N.D.P.S. Act and A-2 under Ss 27A, 28 and 29 of N.D.P.S. Act and Sec.193 of I.P.C., have challenged the judgment of the learned Special District and Sessions Judge for EC Act and NDPS Act cases convicting A-1 under Ss 8(c) read with 21 and 29 of N.D.P.S. Act and A-2 under Ss 28 and 29 of the N.D.P.S. Act and sentencing A-1 to undergo 15 years R.I. each and to pay a fine of Rs.2.00 lakhs each in default to undergo S.I. for 2 years each and A-2 to undergo R.I. for 15 years each and to pay a fine of Rs.2.00 lakhs each in default to undergo 2 years S.I. each, while the State has challenged the acquittal of A-2 by the same Court in respect of the offences under Sec.27A of N.D.P.S. Act and Sec.193 of I.P.C. 3. The short facts necessary for the disposal of both the appeals can be stated thus: (a) On 7.5.98 P.W.50, S.S.Krishnamurthi, the Assistant Director of N.C.B., South Zonal Unit, Chennai was on duty. At about 2.10 P.M. he received a telephonic call from his informer P.W.12 Dominic requesting him to come to Madurai on the same night so as to get a specific information regarding a narcotic offence. P.W.50 accompanied by P.W.1 Shanmugam, an Intelligence Officer and Sepoy Swaminathan left Madras at about 4.15 P.M. on the very same day in the official Car. On reaching Madurai at about 12.30 a.m., they could not meet the informer near Palanganatham Bus stand. Then, they proceeded to the place of the informer namely Radhapuram. On the way when they reached Valliyoor, they tried to contact P.W.12 informer over phone. P.W.12's father replied that his son P.W.12 was waiting in the Petrol bunk situated near Madurai Palanganatham Bus stand. P.Ws.1 and 50 returned back to Madurai. They were able to get in touch with P.W.12 at about 7.30 P. M. P.W.50 reduced the information given by P.W.12 into writing. The original was kept in a sealed cover. Ex.P73 was the information taken by P.W.50. At about 7.45 P.M. P.W.50 went to a STD Booth and contacted the Head Office through phone. P.W.52, Prabhu who was available in the Office at Chennai received the call. P.W.50 who received the information, placed the same before the Director of Narcotic Control Bureau. Ex.P.209 is the print out bill gi ven to P.W.50 in the STD Booth. At about 8.15 A.M. P.W.1 as per the directions of P.W.50 went to Thiruchenduran Mansion and returned back stating that the room No.1 16 was found locked. P.W.50 advised P.W.1 to fetch one independent witness for the purpose of seizure. P.W.50 was remaining in the same place and was on surveillance to find out the accused. At about 11.40 A.M. P.W.50 found the first accused coming in his official Jeep, getting down at Vasantha Nagar Bus Stop and proceeding to Thiruchenduran Mansion with a plastic bag being rolled and kept in his hand. At that time P.W.1 and P.W.7 Ayyannan, the village assistant came there. P.W.7 agreed to be a witness for the investigation. P.W.6 Krishna Rao, who was the Manager of the Thiruchenduran Mansion, was told about the identity of P.W.50 and also about the purpose of visit. P.W.6 also agreed to be a witness. Then P.W.50 accompanied by P.Ws.1, 6 and 7 went to the room No.116 in the first floor. The room was found locked inside. P.W.50 knocked the doors, and the same was opened by the first accused. P.W.50 introduced himself to the first accused and disclosed the purpose of visit and his intention to search room No.116 of the accused. He informed A-1 about his right available under Sec.50 of the NDPS Act. But, A-1 declined to avail the procedure of search before a Magistrate or a gazetted Officer and accepted P.W.50 to conduct the search by himself. P.W.50 asked A-1 whether there was any contraband heroin inside the room. At that time, A1 took out a rose colour polythene bag containing 2 packets inside a cloth bag, which was kept on the cot and handed over the same to P.W.50 and told him that it contained a narcotic drug heroin. P.Ws.1 and 50 deposed that at the time of handing over the heroin packets, the first accused told them that the same was recovered by a few minutes before in Vasantha Nagar Bus stop, and the same was thrown in the street by a suspicious person, who ran away from the place, and he brought back the said heroin for the purpose of registering a case, but no mahazar was available with A-1 for the recovery of the said heroin. P.W.50 was also sure that when he was vigilantly watching at the bus stop, he found the first accused going to the Mansion only with a rolled rose colour plastic bag, and he did not notice such incidence as narrated by the first accused. Not satisfied with the explanation tendered by the first accused and finding that there are reasons to believe that the first accused was found to be in illegal possession of the heroin packets, he directed P.W.1 to seize them. (b) In the presence of P.W.50, P.W.1 removed the brown colour adhesive tape covered in the first packet and found that there were two packets inside. Each packet was kept in polythene cover and contained each small packet inside the same. P.W.1 took two samples of 5 grams each from the first big packet by using the balance and put the same into two separate covers and sealed it with NCB No.11. He also measured the rest of the heroin in the packet and found the same was weighing 890 grams. He marked the two sample packets as PS1 and PS2 and the rest of the packet containing 890 grams as P1. Then P.W.1 removed the brown colour adhesive tape covered in the second packet and found that there were two packets inside. P.W.1 took two samples weighing about 5 grams each by using the balance and put the same into two separate covers and sealed it with NCB No.11. He also measured the rest of the heroin in the packet and found the same was weighing 948 grams. He marked the two sample packets as S3 and S4 and the rest of the packet containing 948 grams as P2. At the time of measurement and seizure P.Ws.6 and 7 were witnessing the investigation. A-1 also handed over his two identity cards under Exs.P4 and P5 and Ex.P2 Gramadhyog bill for purchasing the handbag marked as M.O.10 and also his train ticket for his proposed journey from Madurai to Nagercoil on 8.5 .1998. All those documents were recovered from the first accused at the time of seizure. The samples sealed cover are marked as M.Os.2, 3 , 5 and 6 respectively, while the sealed covers are marked as M.Os.1, 4 and 7 to 9 respectively. P.W.1 took the xerox copy of the identity cards Exs.P4 and P5 produced by the first accused and took the signature of the first accused in the xerox copy which was marked as Ex. P6. The first accused, P.W.1, P.W.50, P.W.6 and P.W.7 subscribed their signatures over M.Os.1 to 9. P.W.1 prepared mahazar in the presence of the first accused and the witnesses. M.Os.2, 5, 7 and 8 were sent for chemical analysis. The remaining M.Os.1, 3, 4, 6 and 9 were available in the same condition as they were at the time of seizure. M.O.10 was the cloth bag wherein the contraband was kept. M.O.11 was the rose colour polythene bag and M.O.12 was 2 numbers of adhesive tapes used by the first accused to cover the polythene packets. When P.W.1 prepared mahazar under Ex.P1, P.w.8 Vivekanandan, Jeep driver of the first accused came to Room No.116. P.W.50 asked P.W.8 to wait outside and after preparation of mahazar, he called P.W.8 inside. P.w.50 issued summons to P.W.8 and the first accused under Section 67 of NDPS Act, and they were marked as Exs.P185 and P182. Thereafter, the said room was locked and key was kept in the custody of P.W.1. (c) The first accused was taken by P.W.50 to the Office of the Assistant Commissioner of Police, Madurai. P.W.50 examined P.W.8, and P. W.8 gave a statement in his own handwriting, which was recorded under Ex.P.58 and a copy was also received by him. P.W.50 examined the first accused, and the first accused also gave a statement in his own handwriting, and the same was marked as Ex.P.183. Then, P.w.50 prepared the arrest memo of the first accused marked as Ex.P.184, and the same was also furnished to A1, who acknowledged the receipt in Ex.P.184, and a witness by name Karuppiah also attested the same. P.W.1 prepared a report under Ex.P7. P.W.50 also prepared a report under Section 57 of NDPS Act for the seizure and arrest of the first accused under Ex.P.210. P.W.50 also handed over the original information in writing given by P.W.12 under Ex.P.73 to P.W.1 to be handed over to the office at Madras. The first accused was produced before the concerned court and remanded to judicial custody till 24.5.1998. P.Ws.1 and 50 speak about all the facts in their evidence. P.W.50 then went to Tirunelveli and Tuticorin for the purpose of gathering evidence regarding the conspiracy of A-1 and A-2. On 16.5.98 he returned back to Madras. He came to know that the second accused has taken steps to abduct the informer P.W.12, and a case was registered in that regard. He contacted the District Special Crime Branch Inspector, Tirunelveli to furnish particulars and got a fax message that cases are registered in Valliyoor Police Station Crime No.141/98 and Kodambakkam Police Station Crime No.148/98 and Koodankulam Police Station Crime No.148/9 8 against A-2 and some others. Then, he contacted the Assistant Commissioner of Central Excise, Tanjore to find out whether A-2 was on duty or on leave. Ex.P111 is the letter sent by P.W.50 to the above address. Ex.P112 is the reply received from Tanjore. On 27.5.98 P.W.5 0 went to Madurai, Tirunelveli and Tuticorin to find out A-2. A-2 was relieved on 8.5.98 from her duty from Central Excise, Tanjore, and she was transferred to Tirunelveli, but she did not join duty at Tirunelveli, nor has she applied for any leave. P.W.50 enquired P.W.33 Prabakaran and obtained his statement. P.W.50 was transferred to Coimbatore as Deputy Superintendent of Police. P.W.51 Raghavan, Superintendent of NCB South Zone, Chennai, who was at camp at Hyderabad on 8.5 .98, came to the Office on 10.5.98 to receive the contraband seized. P.W.51 after receipt of the material objects issued Ex.P11 receipt. On 11.5.98 he entrusted the M.Os. to P.W.1. On 19.5.98 P.W.51 went to Central Excise Office at Madurai and handed over Ex.P17 letter to P.W.2 Periasamy successor in office of A-1, requesting copies of the documents. P.W.2 sent a reply under Ex.P18 along with the copies of the documents under Exs.P19 to P21. Ex.P19 information report was duly signed by P.W.4 Sriram. P.W.51 issued summons to P.W.3 Srinivasan. P.W.3 gave his statement, and it was marked as Ex.P40. On 20.5.98 P.W.51 and P.W.45 Rajasekaran went to P.W.7's house and issued summons to him. Since P.W.7 expressed his inability to write his statement, P.W.45 reduced the statement given by him into writing under Ex.P5 5. P.W.51 left for Madurai on 29.5.98 to find out the activities of the second accused. He learnt that two days back, A-2 was at Madurai, and at that time she was found to be with P.W.33 and one Karunakaran. (d) P.W.51 issued summons to P.W.33 under Ex.P161A and examined him. P.W.33 gave a statement under Ex.P161 in his own handwriting. P.W.33 would confirm that he is the owner of Car bearing Registration No.TN-31-Y-3906. On 1.5.98 P.Ws.50 and 51 wen Tuticorin for examining Udayasooriyan, but, he was not available. P.W.51 came to know that some of the witnesses' statements under Sec.164 of Cr.P.C. were recorded in the Judicial Magistrate's Court, Musiri. He deputed Mr. Sivakumar to go to Musiri for getting the certified copies of the said statements. On 1.6.98 when P.W.51 came to the Office, he found a telegram under Ex.P88A issued in the name of P.W.15 Udayasuriyan. After serving summons under Ex.P189A, P.W.51 examined P.W.15. P.W.15 gave a statement under Ex.P90 in his own handwriting. P.W.15 also gave an additional statement under Ex.P91 and confirmed the identity of A-2 available in Ex.P92 xerox copy of the photo. P.W.51 examined Thillairajan on 7.6.98 by issuing summons under Ex.P214. P.W.51 sent a letter under Ex.P176 to the Assistant Commissioner, Central Excise, Tirunelveli on 9.6.98 and enquired whether A-2 applied for leave. On 9.6.98 the NCB Office received a letter under Ex.P172 from P.W.12 stating that A-2 attempted to murder him. The office also received another telegram in the name of P.W.13 Sam Immanuel marked as Ex.P78A. After issuing summons under Ex.P80, P.W.51 examined P.W.13. At that time, P.W.13 handed over Exs.P82A and P83A documents. P.W.21 Ramkumar, Assistant Commissioner, Customs, Tirunelveli sent Ex.P110 reply stating that A-2 applied leave from 19.5.98 to 12.5.98 and extended the same to 30.6.98. P.W.51 asked about the particulars of the leave applied by her vide Ex.P61 letter. P.W.9 Subbiah Nadar gave a reply under Ex.P62 stating that after 30.6.98 there was no request from A-2 for extension of leave. P.W.51 deputed Nandakumar, an Intelligence Officer along with Ex.P27 letter to approach P.W.2 and collect the copies of the mahazars. P.W.2 gave a reply under Ex.P28 along with Exs.P29 to P38 and P45 documents. P.W.51 came to know that P.W.8 Vivekanandan, Sepoy-cum-Driver also appeared before the VI Metropolitan Magistrate' s Court, Chennai and gave a statement under Sec.164 of Cr.P.C. marked as Ex.P60. (e) P.W.51 thought it proper to examine one Mani. He went to his watch Company, but the same was found locked. He affixed the summons marked as Ex.P107 in the presence of P.W.20 Saminathan. He prepared a mahazar under Ex.P108. P.W.51 directed P.W.45 Rajasekaran, another Intelligence Officer to examine one Sekar. P.W.45 issued summons under Ex.P179 to the brother of Sekar namely P.W.39 Loganathan and recorded a statement. On directions Mr.Nandakumar, an Intelligence Officer went to Nagercoil and gave Ex.P205 letter to P.W.48 Sivasankaran, Sub-Divisional Officer, Telephone Exchange, Nagercoil. Ex.P206 is the reply sent by P.W.48. P.W.48 also furnished Exs.P206 to P208 printouts. On 24.7.98, P.W.51 went to the house of P.W.12 and gave summons under Ex.P75 and examined him. Ex.P76 is the statement given by P.W.12 in his own handwriting. P.W.51 started taking steps to arrest A-2. He gave Ex.P150 application t o all Women Police Station at Kottaru and got the assistance of P.W.32 Sathivanimuthu and one Vijayalakshmi, a Lady Constable. He deputed Sivakumar, another Intelligence Officer to examine Velmurugan. P.W.51 sent a letter under Ex.P113 to P.W.23 Gabrial Pandian, Superintendent of Central Excise, Tirunelveli. The summons to A-2 under Ex.P114 sent along with Ex.P113 was also served by affixture by the office of P.W.23. P.W.23 sent a reply under Ex.P116 to P.W.51. After getting permission, P.W.51 served summons under Ex.P46 on P.W.5 Sekar and recorded his statement under Ex.P47. On 31.7.98 P.W.51 received a letter under Ex.P119, and he came to know that A-2 extended her leave vide Exs.P120 and P121 letters. Since A-2 did not attend in person on 30.7.98, with the available evidence, P.W.51 filed a complaint on 3.8.98. On the same day A-2 gave two telegrams to P.W.51. He also received Ex.P219 letter. He gave a reply under Ex.P220, but it was returned unserved. The order of the High Court in O.P.12835/99 filed by A-2 under Sec.482 Cr.P. C. to quash the proceedings of this case is marked as Ex.P222. In Crl.O.P.No.17654/99, the High Court has directed the CBI Police and Tamil Nadu Police to arrest A-2 and produce before the Court. The order of the High Court is marked as Ex.P223. (f) On 1.2.2000 A-2 surrendered before the Nanguneri Judicial Magistrate's Court. P.W.51 obtained permission of this Court and went to Kokarakulam Sub Jail for examining A-2 in the presence of P.W.31 and another lady Intelligence Officer Mrs.Javalia. P.W.31 examined A-2, and she gave a statement in writing under Ex.P149. P.W.14 Rajendran owner of the Ambassador Car No.TN 2938 was als o examined by the NCB Officials on 13.7.98 on summons under Ex.P86. The statement given by P.W.14 is marked as Ex.P87. P.W.16 Murugan who drove the vehicle from Madurai to Tiruchi and Musiri Court, was also examined, and his statement is marked as Ex.P95, while the summons issued to him is marked as Ex.P94. P.W.19 Kathirvel was also examined on summons under Ex. P102, and the statement given by him is marked as Ex.P103. P.W.25 Ramesh, Manager of Hotel Sudhara, T.Nagar, Chennai was summoned by the NCB Officials under Ex.P124, and he was examined. He gave a statement under Ex.P125. P.W.26 Packthavachalam, the then Manager of Nathan House Lodge, Chennai was also summoned under Ex.P128, and he gave a statement under Ex.P130. P.W.27 Ramababu, the Receptionist in Aruna International Hotel, Chennai was examined on summons under Ex.P131, and his statement is marked as Ex.P132. A summon was issued to P.W.29 Radhakrishnan, a Head Constable attached to D2 Jaihindpuram Police Station, Madurai under Ex.P145, and he gave a statement under Ex.P146. P.W.30 Mohan, an Intelligence Officer filed a report under Ex.P147. Ex.P148 is the second report filed by him. P.W.33 was examined, and he gave a statement under Ex.P174. P.W.37 S ivaraman, an Intelligence Officer gave summons under Ex.P131 to P.W.27 and recorded his statement under Ex.P132. He also gave summons to P.W.34 Suresh and recorded his statement under Ex.P164. He recovered Exs.P167 to P171 from P.W.34. He served summons under Ex.P124 to P.W.25 and recorded his statement under Ex.P125. He also recovered Exs.P122, P123, P126 and P12 7 from P.W.25. He also issued summons to P.W.26 and recorded his statement under Ex.P130. P.W.40 Selvi M.Pitchammal who was then Judicial Magistrate No.V, Madurai deposed that at the time of remand, A-1 did not complain about P.W.50. P.W.43 Gunaseelan, the then Metropolitan Magistrate No.VI, Chennai examined P.W.8 and recorded his statement under Sec.164 of Cr.P.C. marked as Ex.P160. P.W.44 Thayarammal, the then Chief Judicial Magistrate, Tiruchi passed an order under Ex.P18 6 directing the Judicial Magistrate No.V, Tiruchi to record the statement of P.W.33 under Sec.164 Cr.P.C. P.W.46 Tiruchitrambalam, then Judicial Magistrate No.II, Tuticorin recorded the statements of P.Ws.6 and 7 on 27.7.98 under Sec.164 Cr.P.C. marked as Exs.P53 and P57 respectively. P.W.47 Deenadayalan, the then Judicial Magistrate, Musiri recorded the statements of one Karuppiah, D.W.4 Mani and Chandrasekaran under Sec.164 of Cr.P.C. marked as Exs.P199, 201 and 203 respectively. P.W.49 Shaik Ahamed, the then Inspector of Police, Valliyoor P.S. deposed that the Crime No.141/98 was taken on file by the Judicial Magistrate, Valliyoor in C.C.No.134/98. After receipt of the contraband, P.W.11 Sankaran, Chemical Examiner attached to the Office of the Dekputy Chief Chemist, Customs House, Chennai conducted the test and gave two reports under Exs.P70 and P71. During test, he found that all the samples contained heroin. 4. In order to prove its case, the prosecution has examined 52 witnesses and marked 228 exhibits and 12 material objects. After the evidence of the prosecution was over, the accused were questioned under Sec.313 Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses. On the side of the defence, 4 witnesses were examined, and 7 documents were marked. Exs.C1 to C5 were marked. On hearing the submissions of both sides and consideration of the available materials, the trial Court found A-1 guilty under Ss 8C r/w 21 and 29 of NDPS Act and A-2 guilty under Ss 28 and 29 of NDPS Act and sentenced them to undergo imprisonment as stated supra, while it has acquitted A-2 of all the other charges. While the appellants/A-1 and A-2 have brought forth an appeal against the conviction and sentence, the State has come forward with an appeal against the acquittal of A-2 under Sec.27A of the N.D.P.S. Act and Sec.193 of I.P.C. 5. Arguing for the appellants/A-1 and A-2 in C.A.868/00 and respondent in C.A.928/00, the learned Senior Counsel Mr.B.Kumar brought the following points for consideration by this Court: (a) It is true that the appellant/first accused was in possession on 8.5.1998 of what he thought at that time as 2 kilograms of heroin, but the said fact could not ipso facto be an offence under the N.D.P. S. Act, as his status as an empowered officer having the powers of seizure under Sec.42 of the Act and the power to possess any narcotic drug under Sec.53 of the Act would be a complete answer to the charge of possession. Qua possession of a narcotic drug by an empowered officer to amount to an offence, the prosecution must further prove that the said official was in possession of the narcotic drug, which he had illegally acquired from a concerned source or having legally acquired was keeping it for utilisation for unlawful purposes. But, the prosecution has failed to prove the same in the instant case. Without proof in that regard, the prosecution would be wholly unsustainable. If it is not so, the act itself would not be properly worked and implemented. Both the appellants were empowered officers under the N.D.P.S. Act at all relevant times, and hence, they were entitled to protection under Sec.69 of the said Act stating that no prosecution or other legal proceedings shall be launched against them, while they are exercising their powers or discharging any functions or performing any duties under the Act for anything in good faith done or intended to be done under the Act. (b) The burden of proof under Sec.54 of the Act and the presumption as to the mental state under Sec.35 of the Act would arise only when the prosecution has established the illegal source of acquisition of the narcotic drug by the empowered officer not otherwise, since any other view would amount to requiring the accused to prove his innocence. If the Court is of the view that there was a burden of proof on the accused under Ss 54 and 35 of the Act, having been in possession of a narcotic drug as an empowered officer, as such A-1 has discharged the burden under the said provisions. The burden of rebuttal casts on the accused to explain anything or rebut a rebuttable presumption is to be judged by the preponderance of probabilities as in a civil case and not by standard of proof beyond reasonable doubt. The accused can discharge the burden by showing the infirmities in the prosecution case, which itself would amount to a rebuttal and also by examining the defence witnesses and probablising his version of the event. In the instant case, the accused has done both. Number of witnesses