IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:23-04-2007, 25.04.2007 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN CRIMINAL APPEAL No. 110 of 1999 Intelligence Officer Narcotics Control Bureau C3A Rajaji Bhawan Besant Nagar, Chennai-90 ..Appellant/complainant -vs- 1.A.S. Ponraj @ APR(died) 2.V.Rajamannar 3.R.Sundarrajulu .. Respondents/Accused This appeal is filed under Section 378 Crl Pc of 1973 against the Judgment passed in C.C.No.9 of 1993 on the file of the Special Judge,NDPS Act, Chennai dated 25.8.1998. For appellant : : Mr. N.P.Kumar Special Public Prosecutor for NCB Cases For respondents: : Mr.V.Sambamurthy JUDGMENT This appeal has been preferred against the Judgment in C.C.No.9 of 1993 on the file of the Special Judge under Narcotic Drugs and Psychotropic Substances Act, Chennai dated 25.8.1998. The accused have been charged under Section 8 r/w Sections 8(21) (29) of NDPS Act. 2. The short facts of the case sans irrelevant particulars, for deciding this appeal are as follows: On 17.12.1998 at about 10.30p.m., when the Officials of NCB conducted a search in the house of A3 in the presence of A2, they https://hcservices.ecourts.gov.in/hcservices/ have seized a black colour Brief case voluntarily produced by A2 , on opening the said brief case, it was containing a kakki colour polythene bag, another polythene bag containing brown coloured granules, another polythene bag containing brown colour powder and 5 small bag with insulation tape super-scribed as four steel grip and a small sealed polythene bag containing brown colour powder, another 130 small packets in a condom superscribed as steel grip and an eversilver tiffin box containing six small packets in a condom and when the sample taken from the contents of the said pockets were examined with the help of a kit , it answered for the presence of heroin ,a Narcotics drug. The total amount of heroin power seized was 3.4kgs. On the information given by A2, the NCB Officials have proceeded to the office of A1 by name M/s Appu Creations at Directors Colony, Anna Main Road ,Kodambakkam, Chennai from the drawer of A1 100 gms of heroin and American dollars and Indian currency notes along with some documents were seized. A1 had no licence to possess heroin. .Hence A1 to A3 were charged under Section 8 read with Section 29 , 8,21 and 29 of NDPS Act. 3. The case was taken on file by the learned Principal Special Judge for NDPS Cases, Chennai as C.C.No.9 of 1993 and when the accused appeared before the learned Judge, charges as indicated above are framed and when questioned the accused pleaded not guilty. 4. Before the trial Court, on the side of the prosecution, P.Ws 1 to 7 were examined . Exs P1 to P73 were exhibited and , M.Os 1 to 18 were marked. 5. P.W.1 is the then Intelligence Officer of NCB during the period from May 1992 to May 1995. He is an Officer empowered under Sections 42 and 67 of NDPS Act to conduct search and arrest without warrant any person who contravenes the provisions contemplated under NDPS Act and also seize the contraband and also empowered to record his statement from any person who had contravene the provisions contemplated under NDPS Act. As per the intelligence, he has gathered after informing the same on 17.12.1992, he proceeded to the house of A3, Sundararajulu at Door No.126, Alwarpet Annex, Chennai -87, as per the Intelligence, he has gathered as to A1 Ponraj had handed over about 3 kgs of Narcotic drugs to A3 and in that regard, he had submitted a report under Section 42 of the NDPS Act under Ex P1 to his higher officials. In pursuance of the intelligence, he has gathered he has proceeded to the house of A3 along with other officials of NCB including a woman Officer. The superintendent of NCB, a gazetted officer also accompanied with the said team. When they went to the above said address of A3 and knocked at the door , A3 came and opened the door and after revealing their identification to him and also made a request to him to co-operate with NCB officials https://hcservices.ecourts.gov.in/hcservices/ for a search to be conducted in his house. When they entered into the house , they saw a male person and a female person inside the house. The male person identified himself as one Rajamanar and the female person had identified herself as Shrimathi Bhavani, who is the wife of A3 Sundararajulu. P.W.1 has also identified A2 and A3 in the Court and also would admit that the child of Sundararajulu was also present in the house at the time of their visit. When the team entered into the house of A3, A2 after knowing that the people came to the house of A3 are the officials of NCB . Immediately, took them to the kitchen of the house of A3 and took out a brief case which is having the provision of combination lock and applying NO.555, A2 had opened the brief case which contained seven items of articles. Ex p2 is the Mahazar prepared for the seizure of the articles found in the said brief case. The first packet contained brown colour powder in a polythene cover, second packet contained another pocket containing the brown colour powder , third packet contained polythene packet containing brown colour powder, 4th packet was containing brown colour powder in a cylinder shaped container(condom), 6th packet contained 130 small packets containing brown colour powder superscribed as Feroze Stell grip wrapped with insulation tape.7th packet contains a tiffin box containing small packets in condom. The total quantity of 3.40kgs of brown colour powder were seized from the said brief case. The powder emanated medicinal smell. Two samples of 5 gms each were taken from each packet and marked as S1 to S22 and the remaining contraband were packed in a separate packet and sealed. The first packet was marked as p1 and the second packet was marked and separately packed and sealed was marked as P2 and third packet was separately packed and sealed as P3. 4th packet was separately packed by collecting all the brown colour powder from five packets packed together and sealed and marked as P4. The red colour insulation tape was separately packed and marked as P5. The contents of the 5th packet was separately packed and sealed as P6. The contents of 6th packet was separately packed and marked as P7. The contents of 7th packet was separately packed and marked as P8 . Apart from this, they have also seized a photograph and some of the documents which were also mentioned in the mahazar. In P1 to P8 packets , both A2 and A3 and his wife have signed. Before entering into the house of A3, they have also procured two witnesses viz., Sekar and Veeraraj and informing them that they were going to conduct search in door No.126, Alwarthirunagari Annex, and made a request to them to be present with them during the search as a witnesses for which they have also agreed. The above said witnesses Sekar and Veeraraj have also signed as witnesses in P1 to P8 packets. The other documents and photographs were packed separately and after affixing the NCB seal , they were marked as P9.In P9 also A2 and A3 and his wife have signed along with the above mentioned witnesses. P1 to P8 were placed in the same brief case, and locked with the combination lock and the same is marked as P10 in which also the above said witnesses A2 and A3 https://hcservices.ecourts.gov.in/hcservices/ and his wife have signed. The packet containing P1 to P8 are M.O.1. 5a) P.W.2 Thiru A.Vijayanathan was the then Intelligence Officer of NCB during August 1992 to August 1997. As per instructions of P.W.5 Thiru U.Chandrasekaran, the Superintendent of NCB,he(P.W.2) was in the office on 17.12.1992.On 18.12.1992 at about 1.00 a.m., P.W.5 Chandrasekaran contacted him(P.W.2) over telephone and informed that in the search conducted at door No.126,Alwarthirunagar Annex house , they came to know that the said house belonged to A.S.Ponraj(A!) and his office is at No.1, Anna Main Road, Directors Colony, Kodambakkam,Chennai-24 in the name of "Appu Creations" and instructed him(P.W.2) to go to the office of A1 and conducted a search. He immediately, prepared a report under Section 42 of NDPS Act and proceeded to Directors colony where the Appu Creations office is situate along with his colleague. Ex P26 is the report prepared by him under Section 42 of NDPS Act in which the Superintendent also has signed along with two witnesses viz., Isrel and Nethaji and after getting their consent to stand as witnesses for the search going to be conducted by them and they went inside the Appu Creations office on 18.12.1992 at about 1.30a.m., When he knocked at the door of Appu Creations office , a person by name Shanmugam came and opened the door when they went inside the office, they found another person by one Srinivasan was present and when he enquired about A1 A.S.Ponraj, the proprietor of Appu Creations, he was informed that he has left the office a short while. After informing Shanmugam and Srinivasan that they are going to conduct a search in the office and after getting their permission, they conducted the search in the office room of A1. When they opened the first drawer of A1 in the office, found a sum of Rs.30,000/- Indian currency notes and a traveller's cheque to the value of 5000 US dollars and when the second drawer was pulled, he could find some documents numbering eight and when he pulled the third drawer, he found a cover containing two small packets packed with adhesive tape. When he opened the cover, he found the packets containing brown colour powder in it. When samples were taken and tested it. It answered for the presence of heroin, a Narcotics drug. He seized the said packet containing the brown colour powder and traveller's cheque to the value of 5000 US Dollars and Indian currency notes of Rs.30,000/-. From Shanmugam and Srinivasan , they came to know that the abovesaid currency notes and US Dollars and brown colour powder belonging to A1. When the said brown powder were weighed separately, they weighed 5 gms. They have separately packed the powder and marked as PS1 and PS2. The said packets were placed in a polythene cover and again packed in a brown cover and sealed and marked as P3. Both the Indian currency notes and traveller's cheque to the value of 5000 US dollars were separately packed and marked as P4. The witnesses have also signed along with them in the said covers. He has also obtained https://hcservices.ecourts.gov.in/hcservices/ signatures of Shanmugam and Srinivasan who were present at the time of search in the said office of A1. He has also prepared Ex P27 mahazar for the seizure of the above said articles and after the completion of search at about 6.00a.m., the annexure to Ex P27 Intelligence Officer Raghavan and the abovesaid two witnesses and Shanmugam and Srinivasan have also signed as witnesses. In Annexure No.2 to Ex P27 Intelligence Officer Raghavan two other witnesses apart from Shanmugam and Srinivasan have also signed as witnesses. In Annexure Nos.3 to 5 to Ex P27, the above said witnesses have also signed. Ex P28 is the visiting card of A1.Ex P30 is the account papers dated June 2 containing page Nos 5,6,19,20 and 100 .Ex P31 is the letter written by one Christopher to one Elango. In Ex P32, the names of valuable gems were written. Ex P33, is the letter written by one Seelan. Ex P34 is the deed of agreement between A1 and one Soundarapandian.It relates to the production of Cinema film. Ex P35 is the another agreement between A1 and one Ayubkhan.M.O.14 is the sealed cover marked P3 containing brown powder. M.O.15 is the packet containing Indian currency notes to the value of Rs.30,000/-,travellers cheque to the value of 5000 US Dollars which were marked as P4. The contents of M.O.15 was checked before the Court. The covers marked as PS1,PS2,PS3 and PS4 were kept in the godown of the office for safe custody with the forwarding memo Ex P36. Ex P37 is the acknowledgment of the godown keeper.Ex p38 is the statement of Srinivasan who was present at the time of search in the office "Appu Creations" of A1. The statement of Srinivasan and himself have signed. He has prepared a report under Section 57 of NDPS Act which is Ex P39. He has handed over in person PS!,PS2 packets to the customs laboratory for chemical examination. EX P40 is the chemical examination report. Ex P41 is the forwarding memo given by him(P.W.2) to the godown keeper of NCB to keep the packet containing the balance of brown powder,after taking the samples for chemical examination. M.O.16 is the said packet containing the balance of brown powder. Ex P42 is the receipt of acknowledgment given by the godownkeeper. M.O.16 was opened in the open Court and found the presence of PS1 and PS2 sealed packets. M.O.17 andM.O.18 are the packets marked as PS1 and PS2 respectively. A1 gave a petition for return of the Indian Currency notes to the value of Rs.30,000/- which was seized at the time of a search along with a deed of agreement entered into between him and another person in respect of the film by name "Seevalaperi Pandi" On the objection raised by the Additional Public Prosecutor, the said petition filed by A1 in Crl.M.P.No.535/93 was dismissed. Ex C1 is the said order in Crl.M.P.No.535 of 1993. The superintendent in NCB had given instructions to him(P.W.2) to keep surveillance over the house of A1 and his office. As per instructions of the Superintendent of NCB , he went to the house of A1 to serve summons dated 7.1.1993. But he could not serve summons on A1 because he was not there. Then he proceeded to his office in the https://hcservices.ecourts.gov.in/hcservices/ above said address but there also he was not available. Hence he affixed the summons on the outer door of his (A1) office and the mahazar was prepared by another Intelligence Officer byname Ashokraj. Ex P43 is the copy of the abovesaid summon. Ex P44 is the mahazar prepared by him. Ex P45 is the statement of Tmt.usha Ponraj, the wife of A1. Ex P46 is the letter of requisition given to the customs department to furnish the chemical examination report for PS1 and PS2.Ex P47 is the test memo sent by him along with Ex P46. The analyst has endorsed Ex P47 for having received Ex P46 letter of requisition. 5b) P.W.3 Thiru V.Sekar, is the painter in profession. According to him, on 17.12.1992 he along with his co employee Veeraraghavan went to Alwarthirunagar to search for a job. On the same day, night at about 10.30p.m., a car came and stopped near them and occupants of the car enquired about their employment. P.W.4 has informed them that he is a painter and he came there to have a tea and the inmates of the car asked them whether they are willing to stand as witnesses for the house search to be conducted by them and after getting their consent, they(P.W.3) also accompanied the officials to the house at Alwarthirunagar. Since the door was locked, the officials knocked at the door which was opened by a person to whom the officials informed that they are going to conduct a search . Thereupon, another male member inside the house took the officials to the kitchen of the house from where he brought a brief case and handed over the same to the officials.P.W.3 would say that only after the officials informed the person who opened the door that they are going to conduct a search to know whether any narcotic drug is found there. There after the another male member who was present in the house lead the NCB officials along with the witnesses to the kitchen from where he brought a brief case and handed over the same to the NCB officials. 5c)When the NCB Officials enquired the person who produced the brief case as to who gave the brief case to him,he replied that his sister's husband gave the brief case to him. Since the NCB Officials asked the said person who produced the brief case to open the same. He by using a number opened the combination lock of the brief case. There are several packets in a plastic cover in the brief case and there was only an eversilver tiffin box, containing a packet found there. When the packet was opened he could find a brown powder in it. The officials took a sample of powder in the said packet and packed and sealed the same and obtained signature from the witnesses. He(P.W.3) and Veeraraghavan also signed as a witnesses. Apart from this, packet of brown powder was seen in the container like Nirodh. A sample powder was taken from the said container. The balance of the powder was packed separately in another cover and sealed and he and other witnesses have signed on the said cover. The brief case was also packed and sealed. He and other witnesses have also signed on https://hcservices.ecourts.gov.in/hcservices/ the brief case as witnesses.M.O.2 is the said brief case.M.O.1 is his signature(P.W.3)contained in M.O.2 brief case .M.O.3 is his signature on the cover containing the balance of brown powder. P.W.3 has also identified his signature in M.O.6 ,M.O.8, M.O.11,M.O.12 and M.O.13. M.O.13 was opened in the open Court. It contains small packets No.S1,S3.S5,S7,S9,S11,S13,S15,S17,S,19 and S21. P.W.3 would admit that the above said 11 powder packets which were taken out from M.O.13 also contain his signature.M.O.19 series are the elevan powder packets taken out from M.O.13 cover. P.W.3 would also admit that his signature finds a place in M.O.4,M.O.7, M.O.9 and M.O.8.Ex P3 is the photographs taken out from M.O.2 brief case which also contained his signature on the back.P.W.3 would admit that M.O.4 was also taken out from M.O.2 brief case and it also contains his signature.P.W.3 also admit that P4,P5,P7,P3 also taken out from M.).2 brief case and they also contain his signature. P.W.3 has also identified A2 and A3 are the persons present at the time when a search was conducted in their presence in a house at door No.126, Alwarthirunagar annex on 17.12.1992 after 11.00p.m., 5d)P.W.4 is the care taker of Maheswari Wedding Hall at Choolai. He was previously residing at door No.42, Venus Thillai Nayagam Pillai Street, Perambur. On 17.12.1992 on information that his friend Paulraj was ill, he went to his house situate at Ram Theatre,Kodambakkam where he was informed that his friend's condition was serious, and was removed to hospital. He also went to the said hospital in 37D bus and after seeing his friend, who was taking treatment in the hospital, he left the place at 12 midnight and at about 12.45a.m., when he came near Liberty theatre, for a search of an autorickshaw, he was called by two officials and enquired him. The officials informed him that they are going to conduct search in a house at Directors colony, Anna Main Road and requested him to stand as a witness for a search to be conducted by them. He would say that the said officials have also sought for help from 2 or 3 persons who were standing along with him and thereafter the police officials took him and another witness in the car to a house at Anna Main Road. When they reached the said house, three other officials were also standing there. When the officials knocked at the door, the door was opened after five minutes . An aged person and a boy were found present in the said house. After informing them that they are going to conduct a search in the said house and enquired about the owner of the said house viz., "Appu creations", Ponraj(A1) a person informed the officials that A1 had left the house at 11.00p.m and that they do not know when he will return. When the officials informed the inmates of the house that they are going to conduct a search on the basis of the information received by them as to the presence of Narcotic drugs in the said house to which the inmates said that they have no objection for the officials conducting the house search. There is a hall and an office room https://hcservices.ecourts.gov.in/hcservices/ and two of the officials sat on the table found in the office room pulled out the drawer of the table one after another and in the mean time, the other officials conducted search in the other room. In one of the drawers of the table cash was found. In the second drawer the officials found some visiting cards and documents and the third drawer two small packets were found wrapped in a polythene bag. When the bags were opened by the officials after removing the cellotape, brown colour powder was found. The officials had taken sample from the packet for conducting tests. After conducting the tests, the officials confirmed the presence of brown sugar a Nacortics drugs . With a help of a balance , the officials have weighed the contents found in the seized packets one by one. The total weight of the powder comes to 25 gms. They have placed the polythene packets in three covers and placed the currency notes and traveller's cheque in another cover and sealed the same. Thereafter the officials have obtained the signatures of the witnesses in those four packets. The witnesses have also identified his signature in Ex P27 .He would further admit that Ex P28 is the visiting cards seized on the date of house search. P.W.4 would further admit that Exs P28 to P35 were present in the said house on the date of house search. He would depose that 100 currency notes and the traveller's cheque were seized from the second drawer of the office room of A1. M.O.15 are the seized currency notes and traveller's cheques.M.O.15 series were also packed in a brown cover and sealed in which also he and other witnesses have signed and that the house search came to an end at about 5.30 a.m., on the following day ie. on18.12.1992. 5e)P.W.5 is the then Superintendent of NCB South zone , Chennai during 1991-1995. He is an empowered officer under Section 41(2) of NDPS Act He would depose that he knows A1 to A3 and on 17.12.1992 at about 5.30p.m., an Intelligence Officer Mr.Ashokraj had submitted a report under Section 42 of NDPS Act. Ex P1 is the said report. He had perused Ex P1 and took action on the basis of Ex P1 report,he along with P.W.1 Ashok raj an Intelligence Officer, Vijayalakshmi and another Intelligence Officer Mohan went to the place of occurrence mentioned in Ex P1. After reaching the said place, he asked the Intelligence Officer to bring two independent witnesses. Accordingly, Intelligence Officer Ashokraj went outside and brought two independent witnesses. He has informed witness Sekar and also two witnesses Veeraraghavan that he is going to conduct a house search in a house on the basis of an Intelligence that Narcotic drugs have been hidden there and P.W.5 also agreed to stand as a witness for the house search to be conducted by the officials. Thereafter he along with the other witnesses went to door No.126 Alwarthirunagar annex and knocked at the door, a person from inside the door No.126 came and opened the door and after revealing the identification to him by showing their identification cards. They also informed him about the purpose of their visit. The person has also informed that he is https://hcservices.ecourts.gov.in/hcservices/ Sundararajulu, the owner and resident of the said house. p.W.5 has identified A3 in the Court. After getting the consent of A3, his house was searched. Another male person and a female person were found inside the house. The person inside the house had informed P.W.5