IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 17TH DECEMBER 2009 / 26TH AGRAHAYANA 1931 CRL.A.No. 862 of 2009() ----------------------- SC.29/2008 of SPL.COURT (NDPS ACT CASES), VADAKARA .................... APPELLANT(S): ACCUSED NO.1 -------------------------- HABEEB RAHIMAN, S/O. ABDULLA KUTTY, KOLATHIKKAL HOUSE, VETTUPARA, CHEVAYOOR, CHEEKODE P.O. MALAPPURAM. BY ADV. SRI.C.K.SREEDHARAN SRI.SUNNY MATHEW RESPONDENT(S): COMPLAINANT -------------------------- DEPARTMENT OF REVENUE INTELLIGENCE/CRU KOZHIKODE, REPRESENTED BY SPECIAL PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.C.P.UDAYABHANU FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/11/2009, ALONG WITH CRA NO. 774 OF 2009 AND OTHER CONNECTED CASES THE COURT ON 17/12/2009 DELIVERED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 * * * * * * * * * * * * * * * * * * Dated: 17th day of December 2009 JUDGMENT Crl. Appeal Nos. 862/ 2009, 1013 of 2009 and 774 of 2009 are filed by accused Nos. 1 to 3 respectively in S.C. No. 29 of 2008 on the file of the Special Court (N.D.P.S. Act cases) Vadakara (hereinafter referred to as the “Special Court”) for short challenging their conviction under Sections 21 (c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the N.D.P.S. Act for short). Crl.Appeal No. 1183 of 2009 is filed by the Senior Intelligence Officer, Directorate of Revenue Intelligence (DRI for short), Kozhikode challenging the acquittal of A1 of the offence punishable under Section 28 of the N.D.P.S. Act and challenging the acquittal of A2 and A3 of the offence punishable under Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:2:- Section 21 (c ) of the N.D.P.S. Act. It is also contended that the sentence imposed on A1 to A3 is inadequate. 2. For the conviction of A1 under Sections 21 (c ) and 29 of the N.D.P.S. Act and for the conviction of A2 and A3 under Section 29 of the N.D.P.S. Act, they were each sentenced to rigorous imprisonment for 10 years and to pay fine of Rs. 1,00,000/- and on default to pay the fine to undergo rigorous imprisonment for one year. THE PROSECUTION CASE 3. The case of the prosecution is as follows:- Habeeb Rahman @ Kunhappu (A1) and Chottu (A4) were in Saudi Arabia earlier. They came back to India and met at Mumbai and entered into a criminal conspiracy to involve themselves in heroin trafficking. A1 used to contact A4 in his Mobile Phone No. 9846246500 taken in the name of one Faizal who had expired two years back. A4 was using the Mobile No. 9983112901 taken in a fictitious address. The arrangement was that A4 would procure the heroin and Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:3:- send it through Kiran Kumar @ Rakesh (A2) from Kotta in Rajasthan to Calicut in kerala. The services of Gurudharshan Singh @ G.S. Rattan (A3) a railway ticket examiner by occupation was utilised for arranging safe travel of A2 and transport of the contraband from Kotta to Calicut by rail. A2 and A3 used to travel together with heroin by rail even on earlier occasions. During the present occasion on 23- 3-2008 A2 and A3 travelled together in one ticket occupying berth Nos. 27 and 28 of Coach No. N.R.01051 of Rajadhani Express (Train No. 2432) from Kotta to Calicut. They reached Calicut around 10.30 p.m. On 24-3-2008. Immediately on arrival at Calicut A2 contacted A1. A2 and A3 occupied Room No. 301 of Hotel Malabar palace at Calicut. In the morning of 25-3-2008 A1 went to the aforesaid room occupied by A2 and A3 and received MO1 suit case containing 5.178 kgms of heroin and carried the same in his Ford Fiesta Car bearing Registration No. KL-11-Z-1515 to the house of his friend Abdul Kareem (P.W.17) was residing at Homoeo Bhavan, Kuthiravattom, Calicut Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:4:- and kept there. Another consignment of 6.218 kgms of heroin kept in MO15 zipper bag handed over to A1 by A2 was carried by A1 to his uncle's house at Edavannappara and kept there. A1 remitted Rs. 2,00,000 and Rs. 4,00,000 respectively on 31-1-2008 and 3-3-2008 to the Account of Rajesh Bharadwaj (A6) through ICICI Bank, Calicut on instructions from A4 the supplier of heroin towards the value of heroin received. On 25-3-2008 acting on a credible secret information Officers of the Directorate of Revenue Intelligence, Calicut seized MO1 suit case and MO15 zipper bag from Homoeo Bhavan, Calicut and Kolatheekal House, Edvannappara in Malapppuram District respectively. A4 (Chottu) could not be located so far. A6 (Rajesh Baradwaj, whose address has been located at Chandigarh and whose accounts have been freezed is absconding. A5 (Abdul Gafoor) is a person who had purchased a portion of heroin from A1 and is involved in the criminal conspiracy with A1 for selling heroin in India. A1 to A3 and A5 have also admitted their complicity in the separate statements given to Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:5:- P.W.28 the complainant under Section 67 of the N.D.P.S. Act. A1 to A3 and A5 have thus committed offences punishable under Sections 21 (c ) and 29 of the N.D.P.S. Act. Since A1 attempted to effect sale of the heroin so procured through A2 and A3, A1 has also committed an offence punishable under Section 28 of the N.D.P.S. Act. THE TRIAL 4. Out of the six accused persons, A1 to A3 in custody and A5 on bail alone faced trial. On A1 to A3 and A5 pleading not guilty to the charge framed against them by the Court below for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 29 witnesses as P.Ws 1 to 29, and got marked 58 documents as Exts. P1 to P58 and 20 material objects as MO1 to MO20 series. 5. After the close of the prosecution evidence the accused were questioned under Sec. 313 (1) (b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:6:- prosecution. They denied those circumstances and maintained their innocence. The first accused in the separate statement filed him stated as follows:- He has absolutely nothing to do with this case. He does not have any acquaintance with accused Nos. 2 to 4 or 6. Except for the fact that the 5th accused is a person belonging to his place, he has no other relationship with A5. He is running a medical shop in his native place at Edavannappara and he is also a partner in Malabar Travels, Kozhikode conducting the business of “Rent a Car”. He is leading a decent life. DRI officials used to hire vehicles from his partnership business. There was some dispute with regard to the rents payable by them and on account of that he had discontinued giving them vehicles on rent. On 25-3-2008 two persons introducing themselves as DRI officers from Kozhikode visited his medical shop run under the name and style of M.C. Medicals at Edavannappara. He was taken to the DRI office. After reaching the said office he was asked to remain there. Within one hour P.Ws. 1 and 28 came to him and told him that he was an accused in an NDPS Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:7:- Case. Thereafter the attempt on the part of the officers was to make him involved in this case. Even though he tried to resist the attempt they practiced third degree methods on him. The next day morning they brought his wife to the office and asked him to sign statements and documents failing which they threatened to make her also an accused in the case. Unable to withstand the pressures he gave his signatures as demanded. He was not voluntarily affixing his signatures to the statements and other documents. He did so on account of the threat, inducement and ill-treatment. They also threatened him that in case he revealed his experience to anybody, they would visit him with more harm and that his wife could be made an accused at any stage of the proceedings . That is the reason why he did not make any complaint before any of the authorities including the Magistrate. Subsequently, after subjecting him to mental torture his signatures and handwriting were taken in several papers while he was in the District Jail, Kozhikode. At that time also it was to avoid the corporal punishment and danger to his wife and children that he lent his signatures and Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:8:- handwriting. He had married his wife ignoring the protest of his own family people. Hence, besides the hostility of his own family members he did not want his wife to be landed in further trouble. He is completely innocent in this case. He has absolutely no connection with Homoeo Bhavan, situated near Kuthiravattom at Calicut. Abdul Kareem (P.W.17) is a distant relative of his. He had absolutely no connection with him or his house. P.W.6 (Beeyumma) is a woman who is inimically disposed of against him in connection with his marriage. Moreover, there are property disputes between him and P.W.6. He has not been keeping any relationship at all with the family of P.W.6 for the past 15 years. Moreover, it is highly improbable that he would have gone and kept his belongings in the house of P.W.6. He has been falsely implicated in this case by resorting to fabrication of false evidence. He may be set at liberty. A2 had the following to submit before Court:- He is a coolie by profession. He is acquainted Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:9:- with the family of A3. A3 wanted to visit Calicut for arranging an Engineering seat for his son. A3 was having so many ailments and was not in a position to travel alone. Hence he accompanied A3 to Calicut. On 25-3-2008 himself and A3 were trying to arrange tickets for the return journey. While so, certain police officials took them into custody from the Calicut Railway Station. According to the officials A2 and A3 were wandering in the railway station under suspicious circumstances. Thereafter they were taken to the DRI office , Calicut and the above case was booked against them. He is totally innocent in the above case. This was his first visit to Kerala. He has absolutely no connection with A1 to A5 or A6. The DRI officials have created false evidence by using 3rd degree methods by torturing him and putting him on mental agony. His signatures were taken under duress. In some of the papers they have scribed in Malayalam language. He is totally innocent of the charges levelled against him. Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:10:- The 3rd accused submitted as follows:- He is a Traveling Ticket Inspector in the West Central Railway Head Quarters at Kotta in Rajasthan. He is living along with his wife and children. His family is dependent on him. His son by name Jaspreet Singh who completed Plus Two course wanted a seat in National Institute of Technology, Calicut. For the said purpose he visited Calicut along with A2. Since he is a patient of hypertension, diabetes and some other ailments he was not in a position to travel alone particularly, a long journey. In the evening of 25-3-2008 while he along with A2 went to arrange tickets for his return journey certain police officials under the suspicion that they were wandering there under suspicious circumstances took them into custody. Thereafter, they were taken to the DRI office, Calicut and they were booked in the above case. He is totally innocent. He had visited Kerala only once. He has no acquaintance with A1, A4, A5 or A6. He does not know any malayalee. On account of this tragedy he could not attend the marriage of his daughter Puneeth Taran, on Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:11:- 19-4-2008. The evidence against him has been concocted by using third decree methods. They collected his signatures under duress. He was forced to put signatures in some papers which were scribed in Malayalam. This Honourable court may please appreciate his pathetic position and acquit him. A5 stated that it was without property collecting the relevant evidence and facts that he has been implicated in this case and he may be let off after finding him not guilty. 6. Since this was not a case of no evidence for the prosecution, the learned Special Judge did not record an order of acquittal under Section 232 Cr.P.C. The accused did not adduce any defence evidence when called upon to enter on their defence. 7. The learned Special Judge after trial, as per judgment dated 7-4-2009 acquitted A5 of all the charges but convicted A1 to A3 of the offence punishable under Section 29 and A1 of the offence Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:12:- punishable under Sec. 21 (c ) of the N.D.P.S. Act and sentenced them each to rigorous imprisonment for 10 years and to pay fine of Rs. 1,00,000/- and on default to pay the fine to suffer rigorous imprisonment for one year for each of the offences. Hence, their appeals. Aggrieved by the acquittal of A1 to A3 of the offence punishable under Sec. 28 and the acquittal of A2 and A3 of the offence punishable under Sec. 21 (c ) of the N.D.P.S. Act, the complainant has also filed an appeal. The complainant has also contended that the sentence awarded to A1 to A3 is also inadequate. THIS APPEAL 8. I heard Advocate Sri.C.K.Sreedharan, the learned counsel appearing for A1 and Advocate Sri. T.G.Rajendran, the learned counsel appearing for A2 and A3 and Advocate Sri.C.P.Udayabhanu, the Special Public Prosecutor appearing for the complainant Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:13:- (Sri. P.M.Vijayan, Senior Intelligence Officer, DRI, Kozhikode). 9. The following points arise for consideration in these appeals:- i) Whether the conviction recorded against A1 to A3 for the offence punishable under Section 29 of the NDPS Act is liable to be set aside ? ii) Whether A1 and A2 were also liable to be convicted and punished for the offence punishable under Sec. 21 (c ) of the N.D.P.S. Act ? iii) Whether A1 to A3 ought to have been convicted for an offence punishable under Section 28 of the NDPS Act also ? iv) Whether the sentence imposed on A1 and A3 by the court below is inadequate? Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:14:- POINT NO. I THE PROSECUTION EVIDENCE 10. The case of the prosecution as unravelled by the oral and documentary evidence can be summarised as follows:- A. On 25-3-2008 at about 8 a.m. P.W.1 (Syed Muhammed) Senior Intelligence Officer of DRI, Kochi Unit, camping at Calicut received a credible secret information to the following effect:- One Habeeb Rahiman @ Kunhappu (A1) a resident of Kolatheekkal House, P.O. Cheekode, Edavannappara in Malappuram District is bringing heroin from Rajasthan for export to the Middle East . He also distributes the same in northern Kerala. He is at present in possession of about 10 kgms of heroin believed to be secreted in a house at Kuthiravattom, Calicut by name Homoeo Bhavan, Puthiyara Road, Kuthiravattom, Calicut. It is also possible that the said Habeeb Rahman is likely to secret the goods in the house of his uncle Mohammed Kunhi which is situated Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:15:- in front of the house of the said Habeeb Rahman at Edavannappara. B. Based on the said information, P.W.1 submitted Ext.P1 report in that behalf to P.w.27 (Anandakrishnan) Assistant Director, D.R.I., Kozhikode who is the immediate official superior of P.W.1. After acknowledging Ext.P1 report , P.W.27 issued Ext.P2 search warrant to P.W.1 under Sec. 41 of the N.D.P.S. Act to conduct a search of Door No. 27/486 Puthiyara Road, Kozhikode and seize narcotic drugs and psychotropic substances and documents believed to be secreted in the said building . P.W.27 constituted two teams one headed by P.W.1 and another headed by P.W.5 (S. Radhesh), Intelligence Officer, DRI, Kozhikode to conduct a simultaneous search of Homoeo Bhavan at Calicut and A1's uncle's house at Edavannappara in Malappuram District. C) Accordingly, P.W.1 and his party proceeded to Homoeo Bhavan and conducted a search of the said house belonging to P.W.2 George and his son P.W.10 Dr. Baby George and occupied by their tenant, Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:16:- P.W.17 Abdul Kareem, his wife P.W.18 (Asiya) and their daughter P.W.19 (Seenath Aman) and recovered MO1 Echolac suitcase from underneath the cot in the middle bedroom on the ground floor. On questioning the inmates of the house, P.W.17 stated that the suit case belongs to A1. A1 who was found in the house also admitted that it was his suitcase. The suit case which had a number lock was thereafter opened using the number 300 given by A1 to find MO4 series i.e. five separate packets in MO2 carry bag containing the name “Kottons” and altogether weighing 5.178 kms of heroin. The narcotic drug was confirmed to be heroin by means of a test kit carried by P.W.1. The five packets were given the markings B1 to B5. From out of each packet three samples each weighing five grams were drawn by P.W.1 and the sample packets were given the markings B1/A1, B1/A2, B1/A3, B2/A4, B2/A5, B2/A6 and so on. MO3 carry bag containing the printing “Jayalekshmi” which inter alia contained MO12 Indian Express Daily dated 25-3-2008 containing the seal of Hotel Malabar Palace, Calicut, was found inside MO1 suitcase. MO3 carry bag also contained MOs 5 to Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:17:- 11. MO1 suit case as well as its contents were seized under Ext.P3 mahazar which was prepared on 25-3- 2008 itself from 11.30 a.m. till 1.30 p.m. to which P.Ws 2, 10, and 17 signed as witnesses. A1 also affixed his signature to the said mahazar besides P.W.1 who effected the seizure. One Muraleedharan , Intelligence Officer, DRI, Calicut who is a scribe to the mahazar, also signed. D. P.W. 5 (S. Radhesh), Intelligence Officer, DRI, Cochin, who was orally directed by his official superior (PW 27) along with his party and two witnesses by name Shamsudheen and Muneer Kunnath, proceeded to Kolatheekkal House, Building No. 1/420, Cheekode Post, Edavannappara in Malappuram District belonging to Muhammed Kunhi (CW15). P.W.6 (Safia @ Beeyumma) the wife of Muhammed Kunhi opened the door, Muhammed Kunhi was not present in the house. A search of the ground floor of the house did not result in the recovery of any incriminating material. There were two rooms on the first floor of the house and those rooms were seen locked. P.W.6 told the raiding party that the room on the right hand Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:18:- side was used by her husband Muhammed Kunhi who had gone out after locking the same and the room on the left hand side was used by her daughter-in-law who had gone to her native place after locking the room and that the key of that room was not with P.W.6. Thereupon P.W.5 requisitioned the services of the police personnel from nearby Vazhakkad Police Station. A police party reached there and brought a blacksmith who had opened the door of the room on the left hand side. . A search of that room did not result in the recovery of any incriminating article. Thereafter P.W.6 herself opened the room on the right hand side using the key which was in that house. MO15 blue coloured zipper bag was found in the room. On opening the said zipper bag it was containing MO16 series of six packets wrapped in brown paper. The contents of the said packets was found to be heroin which was confirmed by means of test kit brought by the raiding party. Those packets were then weighed to find 6.218 kgms of heroin. MO17 series are the papers used for wrapping the six packets. MO20 series are 12 numbers of brown paper covers found in MO16 zipper bag. P.W.5 Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:19:- serially numbered the packets from 1 to 6. Two samples of 5 gm. each were drawn from each of the packets. The samples drawn from packet No. 1 were given the marking S1 and S2 and the samples drawn from packet No. 2 were marked as S3, S4 and so on. MOs 15 to 20 series were seized under Ext.P13 mahazar to which P.W.1, the two independent witnesses, P.W.6 (Safiya @ Biyumma), P.W.28 (P.M. Vijayan, Senior Intelligence Officer, DRI, Kozhikode) P.W.11 (Santha Balakrishnan, Inspector, Central Excise , Customs Preventive Division, Kozhikode etc. affixed their signatures. The search and seizure and preparation of Ext.P13 mahazar lasted from 12.30 p.m. to 7.30 p.m. on 25-3-2008. E. During the course of the above search A1 revealed that the heroin recovered from his suitcase was handed over to him on that day at Hotel Malabar Palace, Kozhikode by two persons Kiran Kumar @ Rakesh (A2) and Gurudasan Singh Rathan @ G. Singh (A3) staying in room No. 301 of the said hotel. Thereupon P.W.3 (T. Raghavan), the Intelligence Officer, DRI, Kozhikode and his party proceeded to the said hotel on 25-3- Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:20:- 2008 itself and located A2 and A3 staying in the aforesaid room. A search of the said room resulted in the recovery of Ext.P8 electronic ticket No. 0585675291252 in the name of G5 Rattan (A3) in a cover of Riya Travels and Tours Pvt. Ltd. and Indian currency notes worth Rs. 43,000/- in a plastic wrap. A3 was in possession of two mobile phones, the numbers of which were stated as 9352614788 and 997939078. A2 was in possession of a mobile phone with number 9785293171. The Guest Registration Card pertaining to Room No. 301 was called for and the same was produced by P.W.4 (Sandy Kuriakose) the Manager of the Hotel. Ext.P9 is the said Guest Registration Card. In the presence of P.W.4 and one Rajendran, (another employee of that hotel) P.W.3 seized Ext.P8 electronic ticket, cash worth Rs. 43,000/- and Ext.P9 Guest Registration Card under Ext.P10 Mahazar. The search and seizure in Hotel Malabar Palace lasted from 12.30 p.m. to 1.20 p.m. F. The house “Anugraha” bearing building No. 2/174 at Edavannappara, Cheekode Post, Malappuram belonging to A1 was searched on 25-3-2008 itself, Crl. Appeal Nos. 862, 774, 1013 and 1183 of 2009 -:21:- but no contraband goods or incriminating documents were seized from the same. G. Ext.P4 is the report under Section 57 of the N.D.P.S. Act submitted by P.W.1 after the search and seizure, of Homoeo Bhavan. Ext.P11 is the report under Section 57 of the N.D.P.S. Act submitted by P.W.3 to his official superior after the search and seizure of room No. 301 of Hotel Malabar Palace. Ext.P14 is the report under Section 57 of the N.D.P.S. Act submitted by P.W.5 to his official superior after the search and seizure conducted in the house of Moideen Kunhi at Edavannappara. H. P.W. 27 then authorised P.W. 28 (P.M. Vijayan to take over the case file and the properties under seizure for further investigation of the case. I) Pursuant to the oral summons given to A1 a statement of A1 was recorded by P.W.28 the complainant on 26- 3-2008 under Section 67 of the ND.P.S. Act. In that said statement