IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.08.2011 CORAM: THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Criminal Appeal No.785 of 2009 1. Peter @ Peter Prakasam 2. R.Francis .. Appellants/Accused Nos.1 & 2 - Vs - State by Intelligence Officer, Narcotics Control Bureau, South Zonal Unit, Chennai. .. Respondent/Complainant Prayer:- Criminal Appeal filed under Section 374(2) Cr.P.C., against the judgment of the learned Special Judge, Additional Special Court under the NDPS Act cases at Chennai in C.C.No.126 of 2004 dated 18.11.2009, convicting the first accused for the offenses under Section 8(c) r/w 21(c) of the NDPS Act and sentencing him to undergo R.I for 10 years and pay a fine of Rs.one lakh in default to undergo R.I. for one year and further conviction of the first accused as well as the second accused for the offenses under Section 8(c) r/w 29 of the NDPS Act and sentencing them to undergo R.I. for 10 years and pay a fine of Rs.one lakh in default to undergo R.I. for one year. For Appellants : Mr.T.K.Sampath For Respondent : Mr.N.P.Kumar Special Public Prosecutor J U D G M E N T The appellants are the accused in C.C.No.126 of 2004, on the file of the learned Special Judge, Additional Special Court under the NDPS Act cases at Chennai. The first appellant/A1 stood charged for the offenses under Sections 8(c) r/w 21(c), 25, 28, and 29 of the NDPS Act, 1985 as amended by Act 9/2001. The second appellant/A2 stood charged for the offenses under Sections 8(c) r/w 28 and 29 of the NDPS Act, 1985 as amended by Act 9/2001. The Trial Court convicted the first appellant under Sections 8(c) r/w 21(c) and 29 of the NDPS Act however acquitted the first appellant from the charges under Sections 8(c) r/w 25 and 28 of the NDPS Act. The Trial Court convicted the second appellant under Section 8(c) r/w 29 of NDPS Act however acquitted the second appellant from the charges under Section 8(c) r/w 28 of the NDPS Act. The first appellant has been sentenced to undergo R.I for 10 years and pay a fine of Rs.one lakh in default to undergo R.I. for one year for the offenses under Section 8(c) r/w 21(c) of the NDPS Act and to https://hcservices.ecourts.gov.in/hcservices/ undergo R.I. for 10 years and pay a fine of Rs.one lakh in default to undergo R.I. for one year for the offenses under Section 8(c) r/w 29 of the NDPS Act. The second appellant has been sentenced to undergo R.I. for 10 years and pay a fine of Rs.one lakh in default to undergo R.I. for one year for the offenses under Section 8(c) r/w 29 of the NDPS Act. As against the said conviction and sentence, the appellants are before this Court with this appeal. 2. The case of the prosecution in brief is as follows: (i) In this case there are totally four accused involved. Two accused by name Mujahid and Mohammed Bhai are absconding. The case against these appellants alone was tried in C.C.No.126 of 2004. According to the case of the prosecution, these two appellants along with the absconding accused hatched a criminal conspiracy at Thoothukudi, Salem, Chennai and Colombo during the year 2003 to procure, possess and transport heroin. (ii) Out the said conspiracy, heroin weighing 10.420 kgs was carried in a lorry bearing Registration No.TN-25-A-9207 on 02.12.2003. The said lorry was intercepted at a place opposite to the Block Development Office on the G.S.T. Road, Katangolathur, Chengalpet Taluk, Kanchipuram District on 02.12.2003 at 11.00 a.m. The first accused besides the driver and the cleaner of the lorry was found in the lorry. (iii) According to the case of the prosecution, the first accused was found in constructive possession of the said heroin. After following the procedure contemplated under the NDPS Act and Cr.P.C, the same was seized. On the confession of the first accused, the second accused was arrested who in turn has also given a confession admitting his guilt. (iv) On these allegations, the Intelligence Officer, NCB (South Zonal Unit), Chennai filed a private complaint before the Special Court, upon which cognizance was taken. Based on the same, the charges as referred to in the first paragraph of this judgment were framed. The accused denied the charges. As many as nine witnesses were examined and 54 documents were marked as Exs.P.1 to P.54 besides 12 material objects. 3. The brief of the prosecution case as spoken to by the witnesses can be summarized as follows: (i) P.W.3, Mr.A.Sendhil Murugan, during the relevant time, was working as Intelligence Officer attached to Narcotics Control Bureau, South Zonal Unit, Chennai. On 01.12.2003, at 6.00 p.m. when he was in his office, he received a telephonic call over which the caller told him that one Mujahid a native of Srilanka was involved in smuggling Narcotic Drugs from India to Srilanka. He further told that 10 kgs of heroin was to be smuggled from North India through a person by name Francis of Thoothukudi. He further informed that Mr.Francis had made arrangements along with his co- brother's son by name Peter for the said purpose. As per the programme, Mr.Peter was to carry 10 kgs of heroin in a lorry bearing Registration No.TN-25-A-9207 from Chennai to Thoothukudi. https://hcservices.ecourts.gov.in/hcservices/ Mr.Peter would smuggle the same to Srilanka via sea. The informant further stated that on 02.12.2003, the said lorry would be proceeding towards Thoothukudi via Perugalathur via Maduranthagam on the G.S.T. Road around 10.00 am to 12.00 noon. (ii) P.W.3 reduced the said information in writing under Ex.P.9 and forwarded the same to his immediate superior Officer Mr.S.Gunabalan (P.W.8), who was then working as the Superintendent attached to the respondent office. On going through the said information, P.W.8 held discussion with his fellow officers viz., P.W.1, P.W.3 and one Mukundan who are all Intelligence Officers attached to the Respondent. P.W.8, instructed P.Ws.1, 3 and Mr.Mukundan to take immediate action. (iii) On 02.12.2003, at 7.00 a.m. P.Ws.8, 1, 2, 3 and one Mukundan proceeded to the place of occurrence in a Maruthi Omni Van. At 9.00 a.m. they reached Katankulathur at the G.S.T. Road. On the instructions of P.W.8, P.W.3 requested P.W.5 and one Perumal who were the Sub Inspector of Police and Head Constable respectively on patrol duty, to be witnesses. Accordingly, they also joined P.W.8 and others. (iv) At 10.00 a.m. they all assembled in front of the Block Development Office at Katankulathur at G.S.T. Road. When they were closely watching the traffic, at 11.00 a.m. a lorry bearing Registration No. TN-25-A-9207 was proceeding towards Maduranthagam. To check the said lorry near the place where they were standing, they intercepted the same. The lorry came to a halt. In the lorry there were three persons. P.W.3 went near the lorry and introduced himself to the inmates of the lorry. Of the three persons in the lorry, the driver was one Kesavakumar of Thoothukudi, the other person sitting near the cabin of the lorry was one Peter @ Peter Prakasam (first accused). On the left side of the cabin of the lorry, the cleaner by name Balu @ Balakrishnan was sitting. (v) Then in the presence of the witnesses, P.W.3 -Mr. Sendhil Murugan- informed the inmates of the lorry about the information they had under Section 42 of the Act and also informed that they had decided to search the lorry. P.W.3 explained to all the inmates that they had right to demand for search being made in the presence of a Gazetted Officer or a learned Judicial Magistrate. He further told them that he was ready to take them either to a Gazetted Officer or a learned Judicial Magistrate for the purpose of conducting a personal search in his presence. But all the three persons including the first accused told that P.W.3 could himself conduct the search and they were not willing to be searched in the presence of a Gazetted Officer or a learned Judicial magistrate. (vi) Thereafter, P.W.3 enquired A1 as to whether he had any Narcotic drug in his possession. Immediately, A1 answered in the affirmative and opened a small safe in the lorry situated inside the cabin on the left side. On such opening of the safe, he took out two rexine bags containing some substance. He told P.W.3 and https://hcservices.ecourts.gov.in/hcservices/ other officers they there was 10 kgs of heroin in the packets. He handed over the said two bags to P.W.3. P.W.3, in the presence of witnesses and others opened both the bags and found a packet in each bag covered by cloth. Then he took out the packets covered with cloth and further opened it. On such opening, it was found out that they contain two polythene covers containing some substance. On opening the polythene covers, it was found that there was a brown colour powder in each packet. P.W.3 took out a pinch of the power from each packet and put it in the kit he had brought for test. The kit indicated that the powder was heroin. (vii) Therefore, P.W.3 decided to seize the said packets containing the substance viz., heroin. P.W.3, weighted both the packets with the use of a scale which he had readily in his hand. One packet was found weighing 5.300 kgs and other weighing 5.120 kgs. Thus the total weight was 10.420 kgs of heroin. Then P.W.3 took two packets of sample each containing 5 gms from each packet. The samples were put in packets and sealed properly by affixing a slip on each packet. They were assigned numbers as S.1 to S.4. The slips were numbered as P1 and P2. Then he recovered a rexine bag and tied the same as one material and numbered as Ex.P3. (viii) Then P.W.3 seized the lorry along with the other materials found in the lorry. He seized Rs.1010/- and a mobile phone from the first accused. The driver was found to possess a driving licence and the cleaner some Indian currency notes. On further searching the lorry, 14 documents such as permit, agreement for the purchase of the lorry, insurance etc., were seized. Then he seized the packets containing heroin and affixed the NCB seal. P.W.3, prepared the Mahazar for the recovery of the above articles to which P.W.8, P.W.1, lorry driver and the cleaner were all witnesses. Ex.P.10 is the said Mahazar. A copy of the Mahazar was furnished to all the three inmates of the lorry including the first accused. (ix) Then summons under Section 67 of the Act were served on all the three inmates of the lorry including the first accused. Then P.W.8, P.Ws.1 to 3 and the other witnesses proceed to the Maraimalai Nagar Police Station along with the inmates of the lorry including the first accused and the contraband seized from the place of occurrence. They reached the said police station at 4.30 p.m. (x) At the police station, the first accused appeared before P.W.1. On such appearance, the first accused at 4.30 p.m. gave a voluntary statement in his own handwriting and handed over the same to P.W.1. Ex.P.4 is the said confession statement of the first accused. Thereafter, P.W.1 arrested the first accused at 11.30 p.m. The arrest memo in Ex.P.5 was prepared and a copy of the same was served on the accused. Then P.W.1 produced the first accused along with his statement (Ex.P4) to P.W.3 Mr.Senthil Murugan. https://hcservices.ecourts.gov.in/hcservices/ (xi) On the same day at 4.30 p.m. Mr.Balakrishnan the cleaner of the lorry appeared before P.W.2 and he gave a statement in his own handwriting and handed over the same to P.W.2. In the statement he had stated that he had nothing to do with the contraband. Since P.W.2 believed the said version, he let him off. Then he handed over the statement of Mr.Balakrishnan (Ex.P.8) to P.W.3. (xii) On the same day at 4.30 p.m. Mr.Mukundan examined the driver and recorded his statement. Since he was also found to have no connection with the contraband, he was also let off. (xiii) On 03.12.2003, the first accused was produced before the learned Judicial Magistrate II at Chengalput for judicial remand. On the same date, P.W.3 produced the seized articles including the heroin packets and sample packets to P.W.8. In acknowledgment of the same P.W.8 issued Ex.P.21 receipt. P.W.8 kept the said contraband in the godown under safe custody. On 04.12.2003, P.W.1 and P.W.3 submitted reports under Section 57 of the Act to him under Exs.P.6 and P.12. (xiv) Thereafter, on 19.12.2003, P.W.8 gave a requisition to Assistant Commissioner (Central Excise) at Thoothukudi to conduct house search on the house of the second accused. Ex.P.22 is the said requisition. On 24.12.2003, P.W.6-Mr.E.Ramachandran- at 12.30 a.m. conducted house search at the house of A2 in the presence of P.W.1 and two witness by name Suresh Antony and Rafeesh. The wife of the second accused was also present but no incriminating material was seized from the house. In this regard a Mahazar was prepared. (xv) Thereafter P.W.6 issued summons to the second accused calling upon him to appear before the NCB officials for interrogation. The said summons was issued on 24.12.2003. Again on 25.12.2003, P.W.9 issued summons to the second accused to appear before him at the Customs Division Office, Thoothukudi at 8.00 a.m. on the same day. Ex.P.44 is the said summons. Accordingly A2 appeared before him and gave a six page statement written in his own handwriting. The said statement given under Section 67 of the NDPS Act is marked as Ex.P.45. (xvi) The photograph of the first accused was shown to A2 and A2 in turn identified A1 in the photograph. The photograph with endorsement of A2 is marked as Ex.P.47. The passport issued in the name of second accused is Ex.P.46 and the same was also seized from him. Thereafter, P.W.9 arrested A2 at 3.00 p.m. on 25.12.2003 and arrest memo was served on him. Thereafter, he was produced before the learned Judicial Magistrate, Thoothukudi for remand. Accordingly, he was remanded. On 26.12.2003, he submitted a report under Section 57 of the NDPS Act to P.W.8 in respect of the arrest of A2, seizure of material objects and the confession of the A2. https://hcservices.ecourts.gov.in/hcservices/ (xvii) Continuing the investigation, P.W.8 made a request to the Court for forwarding the sample packets for chemical examination. On 10.02.2004, P.W.8 received the chemical analytical report under Ex.P.16. According to Ex.P.16, the substance contained in the sample packet was heroin. He handed over Ex.P.16 to the investigating officer. (xviii) On 16.04.2004, he made a request to BSNL, Tamil Nadu Circle to furnish the details of the incoming and outgoing calls from the mobile No. 94432 88546. Similarly, he gave a request to the Regional Transport Officer, Tirunelveli District to give a certificate in respect of the ownership of the lorry seized. On the same day, he made a request to the Airtel, Tamil Nadu Circle, for furnishing the details about the incoming and outgoing calls from two mobile Nos.98421 59138 and 98422 54962. Similarly he gave yet another request to BPL, Tamil Nadu Circle calling for details of the mobile No.98432 40926. Then he issued summons to P.W.5 Mr.M.Elumalai the Sub Inspector of Police and Mr.Perumal the Head Constable to appear before him for interrogation. (xix) Thereafter, the statement of witnesses were recorded, records were collected and finally a complaint was laid before the Special Court, on which basis, the learned Special Judge took cognizance and tried the accused since they denied the charges. 4. As I have already narrated P.W.1 Mr.R.Murugan, P.W.2 Mr.S.Karthikeyan, P.W.3 Mr.A.Sendhil Murugan and P.W.8 Mr.S.Gunabalan have spoken to about the proceedings starting from the receipt of the secret information till the laying of the complaint. P.W.5 has spoken to about the interception of the lorry and the possession of heroin in the lorry at the hands of the first accused. P.W.6 has spoken to about the house search conducted at the house of A2. P.W.4 who is a Chemical Analyst has spoken to about the analysis conducted by her on the samples and the report submitted by her. P.W.7 has spoken to about the house search conducted at the house of A2. P.W.9 has spoken to about the arrest of the second accused, confession given by him and the recovery of certain material objects. 5. When the above incriminating evidence were put to the accused under Section 313 Cr.P.C, they denied the same as false. The first accused in his statement under Section 313 Cr.P.C. has stated that the driver of the lorry, on the crucial date called him over the phone while he was in Thoothukudi and wanted him to rush to Katangalathur. Accordingly he went there. At Katangalathur he was immediately arrested by the Central Excise officials. He has further stated that he has got nothing to do with the substance involved in this case. The second accused in his statement has stated that he has got nothing to do with the heroin in this case. But, because of some previous enmity the Central Excise Officials have foisted this false case. But they do not choose to examine any witness on their side. One document was exhibited in defence as Ex.D1. https://hcservices.ecourts.gov.in/hcservices/ 6. Having considered the above materials, the Trial Court found the accused guilty as detailed in the first paragraph of this judgment and accordingly punished them. That is how the appellants are before this Court with this appeal. 7. I have heard the learned counsel Mr.T.K.Sampath for the appellants and Mr.N.P.Kumar learned Special Public Prosecutor for the complainant NCB, Chennai and also perused the records carefully. 8. The learned counsel appearing for the appellants among other grounds would focus his arguments on the following grounds viz., (i) The so called confession of the first accused under Ex.P.4 is not admissible in evidence in terms of Section 26 of the Evidence Act since the same was recorded in the police station in the presence of police personnal. Further the said statement cannot be taken as a voluntary confession of the first accused. The retraction of the said confession on 16.12.2003 needs to be weighed. (ii) Assuming that Ex.P4 is admissible in evidence and the same can be acted upon, in the absence of corroboration from any independent source, conviction solely based on the same cannot be sustained. (iii) There are lot of discrepancies between the evidence spoken to by various witnesses and the documents pressed into service by the prosecution on material particulars and such discrepancies will make the case of the prosecution incredible. (iv) The foremost discrepancy is that the time of seizure of the lorry. According to the case projected by the prosecution, the lorry was seized at 11.00 a.m. on 02.12.2003, whereas, according to P.W.1, it was seized only at 11.30 p.m. at night. (v) Similarly in respect of the place where the seizure of contraband was effected, there is discrepancy in as much as according to Exs.P.5, P.6, P.15 and P.22, seizure was effected from a place opposite to Block Development Office, whereas according to Ex.P.19 -Summons issued to A2- seizure was effected from a premises opposite to Block Development Office. (vi) Though it is alleged that the lorry was intercepted at the place of occurrence at 11.00 a.m. Ex.D1, police notice issued by Inspector of Police (Traffic) Villivakkam, Chennai which was seized from the lorry would show that the lorry was charged by the Inspector of Police for Traffic violation on 02.12.2003 at 17.15 hours i.e., 5.15 p.m. Therefore, interception of the lorry and seizure of contraband at 11.00 a.m. on 02.12.2003, cannot be true. (vii) Though P.W.8 and his party proceeded to the place of occurrence on specific information, there is no explanation as to https://hcservices.ecourts.gov.in/hcservices/ why they did not choose to take independent witnesses as required under Section 100 of Cr.P.C. (viii) P.W.5, the Sub-Inspector of Police on patrol service was procured by the respondent to be a witness for their alleged search and recovery hence the evidence of P.W.5 is tainted and the same cannot be believed. (ix) The second accused was served with summons on 24.12.2003, and accordingly he was present at the office of P.W.6. The same is spoken to by P.W.6. But then again summons was issued by P.W.9 to A2 to appear on 25.12.2003. The confession under Ex.P.45 was thereafter allegedly recorded on 25.12.2003 at 8.00 a.m. The said statement cannot be considered to be voluntary. (x) The so called confession recorded under Ex.P.45 was duly retracted by A2 without any delay. Thus it becomes tainted. (xi) The conviction of the second accused based on Exs.P.45 and P.4 cannot be sustained since both are tainted statements. 9. The learned counsel submitted extensive arguments elaborating the above grounds and in conclusion, he pleaded for acquittal of both the accused. 10. The learned Special Public Prosecutor would stoutly oppose the appeal. According to him, the confession of A1 under Ex.P.4 and the confession of A2 under Ex.P.45 are all voluntary confessions and there are no materials to hold that they are not voluntary. According to the learned Special Public Prosecutor, it is settled law that these confessions can be the foundation for conviction of the accused. 11. He would further submit that apart from Ex.P.4 confession, as per the evidences of P.Ws.1 to 3, 5 and 8 it has been clearly established that the first accused was found in possession of heroin seized from the lorry. There are reasons to disbelieve their evidences. Thus, the possession of heroin at the hands of the first accused has been clearly established by the prosecution. Thereafter, it is the burden of the accused to disprove the same which he had not done. The evidences of P.Ws.1 to 3, 5 and 8 are duly corroborated by the confession of the first accused. 12. Regarding the second accused, the learned Special Public Prosecutor would submit that his voluntary confession under Ex.P.45 itself can be the sole basis for conviction and there are no materials to doubt the voluntariness of the same. Apart from that, the said confession is duly corroborated by the confession of the first accused under Ex.P.4. Therefore, conviction of the second accused also needs to be sustained, he contended. 13. In respect of Ex.D1, the learned Special Public Prosecutor would submit that Ex.D1 is not legible and does not show https://hcservices.ecourts.gov.in/hcservices/ that the said police notice was issued at 17.15 hours as it is projected by the learned counsel for the appellants. In the absence of the examination of the Inspector of Police (Traffic), Villivakkam, Chennai, according to him, no weightage should be given to Ex.D1. He would further submit that the receipt for payment of fees issued by the National Highways Authority of India marked as exhibit would go to show that the lorry crossed the Vannagaram between Tambaram and Maduravoyal on 02.12.2003 at 10.03 a.m. this will clearly go to substantiate the case of the prosecution that at 11.00 a.m. it was intercepted at Katankulathur near Tambaram. Thus according to him, there is no discrepancy. 14. The learned Special Public Prosecutor would further contend that the so called discrepancies pointed out by the learned counsel for the appellants are highly immaterial and they will not create any doubt in the case of the prosecution. In conclusion, he prayed for the dismissal of the appeal. 15. The learned counsel on either side have placed reliance on a number of decisions of the Hon'ble Supreme Court as well as this Court about which I will make reference at the appropriate stages of this Judgment. 16. I have considered the above submissions and also perused the records carefully. 17. For the sake of convenience, let me first of all take up the case of A1. So far as the first accused is concerned, the prosecution mainly relies on the evidences of P.Ws.1 to 3, 5 and 8 who have spoken to about the possession of the contraband viz., heroin at the hands of the first accused at 11.00 a.m.