1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24.02.2011 CORAM THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Crl.A.No.27 of 2011 Mohammed Nowman ... Appellant/A1 Vs. Central represented by the Intelligence Officer, Narcotic Control Bureau, South Zonal Unit, Chennai in Cr.No.NCB.F.Bo.48/1/2/2000 ... Respondent Prayer: Criminal appeal is filed under Section 374 (2) of Cr.P.C. against the judgment dated 12.05.2003 passed in C.C.No.582 of 2000 by the Special District and Sessions Judge for E.C. and NDPS Act cases, Madurai. For Appellant : M/s. M.Saravanakumar For Respondent : Mr.C.Arul Vadivel @ Sekar, Spl. Public Prosecutor (for NCB Cases) J U D G M E N T Challenge in this criminal appeal is to the conviction and sentence dated 12.05.2003 passed in Calendar Case No.582 of 2000 by the Special District and Sessions Judge for E.C. and N.D.P.S Act Cases, Madurai. 2. The epitome of the prosecution case can be stated like thus: From November 1992 to February 2000, the accused namely Jummathul Kamal, Mohammed Nowman, Mohammed Nazar, Francis and Sunil have conspired together at Chennai, Thisaiyanvillai, Uthangkuli and some other places to import illegally heroin from Pakisthan and also export the same to Sri Lanka. In pursuance of the conspiracy hatched by them, the first and second accused have transported 39.5 kilograms of heroin in the bus bearing Registration No.TN-01-M-7999 and on https://hcservices.ecourts.gov.in/hcservices/ 2 20.02.2000 at about 4.00 hours the complainant and others have intercepted the said bus at a spot which situate five kilometres away from Tirunelveli. The complainant has recovered 39.5 kilograms of heroin from the accused 1 & 2 and the accused 1 & 2 have been arrested. The third accused also involved in the conspiracy and also in the alleged occurrence. After investigation, the Inspector of Police concerned has filed a final report and the same has been taken on file in Calendar Case No.1262 of 2001. Since some of the co- accused are absconding, the present accused have been arrayed as accused Nos.1 to 3 in Calendar Case No.582 of 2000. 3. The trial Court has given copies of relevant documents to the accused 1 to 3. The trial Court has framed necessary charges under Sections 8(c) read with 29, 8(c) read with 21 and also 8(c) rad with 23 and also 28 of the Narcotic Drugs and Psychotropics Substances Act against the accused and the same have been read over and explained to them and the accused 1 to 3 have denied the charges framed against them and also claimed to be tried. 4. On the side of the prosecution, PWs.1 to 14 have been examined and Exs.P1 to P80 and MOs.1 to 11 have been marked. When the accused have been questioned under Section 313 of the Code of criminal Procedure, as respects the incriminating circumstances appearing in evidence against them, they denied their complicity in the crimes. On the side of the accused, Exs.D1 & D2 have been marked and no oral evidence has been let in on the side of the accused. 5. The trial Court after considering all the evidence available on record, have found the accused 1 to 3 guilty under the Sections mentioned in the charge and ultimately sentenced each of the accused to undergo ten years rigorous imprisonment and also slapped a fine of Rs.1,00,000/- upon each accused, for each offence with default clause. 6. Against the conviction and sentence passed by the trial Court, the first accused as appellant has filed the present criminal appeal. 7. The learned counsel appearing for the appellant/first accused has meticulously contended that the first accused has no connection whatsoever with the alleged offences as well as with the remaining accused and the trial Court without considering the contentions urged on the side of the appellant/first accused, has erroneously invited the conviction and sentence against him and under the said circumstances, the conviction and sentence passed against the appellant/first accused by the trial Court are liable to be interfered with. 8. The learned Special Public Prosecutor (for NCB cases) has also equally contended that the first accused has also participated in the alleged conspiracy and, PW1 and others have intercepted the bus bearing Registration No.TN-01-M-7999 and subsequently found that the accused 1 & 2 are in possession of 39.5 kilograms of heroin and https://hcservices.ecourts.gov.in/hcservices/ 3 the accused 1 & 2 have given clear statements and after observing all legal formalities, the contraband has been seized from the accused 1 & 2 and on the basis of their statements, the third accused has been arrested and who has also given clear statement with regard to his involvement in the alleged crimes and further on the side of the prosecution plethora of evidences are available so as to point out the guilt of the third accused and the trial Court after considering all the relevant evidence has rightly found all the accused guilty under the Sections mentioned in the charges and therefore, the argument advanced by the learned counsel appearing for the appellant is totally erroneous and the same is liable to be rejected. 9. Basing upon the divergent contentions raised on either side, the Court has to find out as to whether the appellant/first accused was also involved in the alleged conspiracy and also in the alleged offences. 10. The entire case of the prosecution is based upon Ex.P9. Ex.P9 is an Information Report dated 19.02.2000. In Ex.P9, it has been clearly stated that the accused 1 & 2 are travelling in the bus bearing Registration No.TN-01-M-7999, from Chennai to Thisaiyanvillai on seat Nos.15 & 16 and further it is stated that the accused 1 & 2 are carrying large quantity of Narcotic Drugs and further it is stated that the accused 1 & 2 have booked bus tickets in the name of one Akbar Ali. On the basis of Ex.P9, necessary information has been given to PW1 viz., Venugopal. 11. PW1 has stated in his evidence that on 19.02.2000 at about 11.30 p.m. he has received an information from his immediate superior and after receipt of the same, he and others have proceeded to Tirunelveli and reached Tirunelveli at about 3.15 a.m. on 20.02.2000 and, PW1 and others have fixed the place at Madurai-Tirunelveli National Highways, just five Kilometres away from Tirunelveli town and at about 4.30 a.m., the bus bearing Registration No.TN-01-M-7999 has reached the said spot and the same has been stopped and, PW1 and others have introduced themselves and they searched the bus and ultimately found that the accused 1 & 2 have seated on seat Nos.15 & 16 and they are in possession of heroin and the accused 1 & 2 have been given necessary legal information about their willingness to search them in the presence of any gazetted officer or a Magistrate and both of them have voluntarily conceded the search and the heroin which is in possession of the accused 1 & 2, has been seized after observing legal formalities and both of them have given separate statements, wherein they have clearly stated that the third accused is waiting for them at Thisaiyanvillai bus stand. 12. One Raghavan has been examined as PW2. He has stated in his evidence that on 19.02.2000 at about 10.00 p.m. an information has been received to the effect that the first and second accused are going to smuggle heroin through Sudha Travels and the same has been passed on to PW1. One Sebastian has been examined as PW3. He has corroborated the evidence of PW1 and also recorded the statement of the third accused. https://hcservices.ecourts.gov.in/hcservices/ 4 13. The chemical examiner by name Radhakrishnan has been examined as PW5. He would say in his evidence that he has examined the sample sent to him and ultimately found that the sample is nothing but heroin. One Chinnadurai, cleaner of the said bus, has been examined as PW9. He has stated in his evidence that on 20.02.2000, PW1 and others have intercepted the bus bearing Registration No.TN-01-M-7999 in which he served as cleaner. Further he would say in his evidence that PW1 and others have arrested the accused 1 & 2 and subsequently recovered heroin from them. Exs.P3 & P4 are acceptance letters of accused 1 & 2. PW1 has also stated in his evidence that the contents of Exs.P3 & P4 have been explained to accused 1 & 2 by one Raman. Exs.P62 & P63 are the statements of the first and second accused. Ex.P28 is the statement of the third accused. In Exs.P62 & 63 both the first and second accused have clearly stated the alleged involvement of the third accused. In Ex.P28, the third accused has clearly admitted that he has been enquired on 20.02.2000 with regard to contraband seized from the Ceylonists and further he has stated in his statement that on 20.02.2000 he waited near Tirunelveli for receiving heroin from the said Ceylonists so as to send the same to Sri Langa and further he has stated in his statement that the other accused have given assurance to give Rs.50,000/- to him. Further he has stated that only after getting signal from one Ravi, he has to send the contraband through the boat of one Nelson. 14. From the oral evidence narrated supra as well as the documents referred to above, it is needless to say that the appellant/first accused has also involved in the commission of offence. It is not an exaggeration to say that the prosecution has observed all legal formalities before recording statements from the accused 1 to 3. The accused 1 to 3 have clearly admitted their alleged involvement in the crimes. PW1 and others have seized the contraband from the accused 1 & 2 and the same has been analysed and found as heroin. Therefore, viewing from any angle, the Court cannot come to a conclusion even for a minute that the appellant/first accused has had no connection with the alleged offences. 15. The trial Court after considering all the rival contentions raised on either side, has rendered a proper and detailed judgment. In the judgment rendered by the trial Court, no infirmities are found. Therefore, the judgment rendered by the trial Court needs no interference. 16. In the light of the discussion made earlier, it is very clear that the argument advanced by the learned counsel appearing for the appellant/first accused is really sans merit and whereas the argument advanced by the learned Special Public Prosecutor is really having attractive force. https://hcservices.ecourts.gov.in/hcservices/ 5 17. In fine, this criminal appeal deserves dismissal and accordingly is dismissed. The conviction and sentence passed in Calendar Case No.582 of 2000 by the Special District and Sessions Court (for EC & NDPS Act cases), Madurai against the appellant/first accused are confirmed. The default sentence imposed by the trial Court against the appellant/first accused is alone reduced to two years for each offence. Sd/- Assistant Registrar (P&A) /True Copy/ Sub Assistant Registrar To 1. The Special District and Sessions Judge (for EC & NDPS Act cases), Madurai. 2. The Intelligence Officer, Narcotic Control Bureau, South Zonal Unit, Chennai. 3. The Special Public Prosecutor, for NCB Cases, Madurai Bench of Madras High Court, Madurai. 4. The Superintendent, Central Prison, Cuddalore. Crl.A.(MD).No.27 of 2011 24.02.2011 akv NSV/30.3.11/5P/5C https://hcservices.ecourts.gov.in/hcservices/