IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 19.03.2010 CORAM THE HONOURABLE MR.JUSTICE T. SUDANTHIRAM CRIMINAL APPEAL NO.707 OF 2006 1.Mohammed Jameen Mohamed Munawar 2.Abdeen Mohamed Gazali 3.M.H.M.Sabry alias Shraf ..Appellants/accused Versus Intelligence Officer NCB South Zone Chennai ..Respondent/complainant Criminal Appeal filed against the conviction and sentence imposed by the learned Principal Special Judge, NDPS Act cases, Chennai in C.C.No.309 of 2002 dated 06.10.2005. For Appellants : Mr.B.Kumar Senior counsel for Mr.T.S.Sasikumar For Respondent : Mr.R.Dhanapal Raj Special Public Prosecutor for NCB Cases JUDGMENT The accused 1 to 3 in C.C.No.309 of 2002 on the file of the Principal Special Judge, (NDPS Act Cases), Chennai, stand convicted under Sections 8(c) r/w 21(c), 28 and 29 of the NDPS Act and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1 lakh in default to undergo rigorous imprisonment for one year for each count under Sections 21(c), 28 and 29 of NDPS Act. 2. The case of the prosecution is as follows: On 09.04.2002 at 6.30p.m., P.W.1, Intelligence Officer, NCB, Chennai received an information over phone that one Abdeen Mohamed Gazali is indulging in drug trafficking and he is to leave Chennai by flight bound for columbu on 09.04.202 at 9.00p.m., and he had concealed about 5 kgs heroine in the falls bottom of his suitcase. P.W.1 recorded the said information in Ex.P.1 and submitted the report to his Assistant Director and obtained his signature. At about 7.15p.m., P.W.1 along with the Assistant Director P.W.7 and others went to the airport and reached the place at about 7.45p.m. He https://hcservices.ecourts.gov.in/hcservices/ called P.W.8 Sivaraman and another Varadarajan, Security Officers and introduced himself showing his identity card and asked them to stand as witnesses. They went to the place where the travellers were seated. On identifying the second accused Abdeen Mohamed Gazali, P.W.1 showed his identify card and informed about the information by him and also informed that he is to be searched and also about his right to be searched before the learned Judicial Magistrate or gazetted officer as per Section 50(i) of the NDPS Act. The second accused opted to be searched by P.W.1 himself. The second accused informed that he had brought one big size suitcase and one green colour rexin bag and he was carrying the rexin bag in his hand. He handed over the claim tag No.UL 725051 for the suitcase. P.W.1 and others went along with the accused and got the luggage from the airport officers. The number in the tag claim was verified and confirmed. The second accused also identified the suit case. P.W.1 enquired the second accused whether he was in possession of any narcotic drug. The second accused opened the suit case and removed the clothes which were kept inside the bag and opened the falls bottom in the suit case and took out a polythene bag and handed over to P.W.1 saying that the packet contained 5 kgs of heroine. P.W.1 seized the contraband weighing 5.010 kilograms. He took two samples each weighing 5 grams and those packets were also sealed. The second accused was also searched and he was having the air ticket in the name of Abdeen and he was also having boarding pass. He was also having Indian currency of Rs.440/-. All the properties were seized. The mahazar was prepared in Ex.P.2 and it was completed at 11.00p.m., and in the said mahazar, two witnesses who were Security Officers, Assistant Director and the second accused signed. 3. P.W.7, the other Intelligence Officer issued summon Ex.P.37 to the second accused and the second accused also voluntarily agreed to accompany him to the NCB Office. The seized contraband and the documents prepared were brought to the NCB Office and the second accused also accompanied. 4. On 10.04.2002, P.W.7 recorded the voluntary statement of the second accused Ex.P.38 under Section 67 of NDPS Act. The second accused was arrested at 12.00noon on that day. P.W.1 sent a special report Ex.P.9 to his Assistant Director. P.W.2 produced the second accused before the learned Magistrate for judicial custody and also handed over the seized contraband to the NCB godown. 5. P.W.5 the chemical analyst on receiving the sample packets, analyst substance and gave a report Ex.30 stating that the samples contained Di-Acytyl-Morphine known as heroine. Ex.P.30 was countersigned by P.W.4. 6. On 14.09.2002, P.W.2 Intelligence Officer received an information about the accused 1 and 3 who were also wanted in this case, that at about 10.45p.m, he received information that accused 1 https://hcservices.ecourts.gov.in/hcservices/ and 3 are likely to come to Anna International Airport on 15.09.2002 at 0.00hours and recorded the information in Ex.P.20 and accompanied with P.W.1 and others went to Chennai International Airport and reached there at about 00.30 hours. P.W.2 and others identified the accused 1 and 3 on the basis of the identification particulars given by the second accused in his statement. P.W.2 intercepted the accused 1 and 3 and issued summons Ex.P.21 to the first accused and P.W.1 issued summon Ex.P.10 to the third accused. P.W.2 along with accused 1 and 3 came to the NCB Office at about 3.30a.m. On 15.09.2009 at about 9.00a.m., the first accused gave a statement in Ex.P.22 in his own handwriting before P.W.2. He also handed over the duplicate passport Ex.P.24. The first accused was arrested at about 11.00a.m. The third accused also gave his voluntary statement Ex.P.11 before P.W.1. The statement was recorded by P.W.1. P.W.1 arrested the third accused at about 11.00a.m. He also submitted a special report Ex.P.13 under Section 57 of the NDPS Act to the Superintendent. P.W.3 produced the accused 1 and 3 before the learned Judicial Magistrate for remand. P.W.6 Intelligence Officer of NCB issued summons to P.W.8 Sivaraman and another witness Varadharajan and recorded their statements in Exs.P.32 and P.33 respectively. 7. P.W.6, after completing the investigation, laid the final report against the accused 1 and 3 and also against the absconding accused Siddique and Vinod under Sections 8(c) r/w 21,23,28 and 29 of NDPS Act. 8. The prosecution in order to establish its case examined P.W.s.1 to 8, marked Exs.P.1 to 42 and produced 5 material objects. When the accused were questioned under Section 313 Cr.P.C., with regard to the incriminating circumstances available against them, they denied their complicity. The first accused submitted that on 09.04.2002, he was in Sri Lanka, on 06.06.2002 he came to India in connection with the marriage of his daughter and for taking treatment. He stayed at Chennai till 15.09.2002 for the arrival of his wife. When he went to the Airport to receive his wife on 15.09.2002, he was intercepted there. A false case has been filed against him. The second accused would submit that he came to India on 09.04.2002 for the first time. The contraband was kept in the suitcase which was brought from elsewhere. He had no connection with the suitcase which contained the contraband. His signature was obtained in a statement recorded by the officers of NCB office. He did not know the contents of that statement. A false case has been foisted against him. The third accused would submit that he was residing at Pollichalur for the past six years. He had no connection with the contraband seized in this case. He was taken from his house and his signature was obtained in 5 or 6 papers written by NCB Officers. He did not know the contents of the same. https://hcservices.ecourts.gov.in/hcservices/ A false case has been filed against him. The trial Court after analysing the evidence, convicted and sentenced the accused as stated above. 9. Mr.B.Kumar, learned Senior Counsel appearing on behalf of the first and third accused submitted that they were not in possession of any contraband, but they have been falsely implicated on the basis of the confessional statement said to have been recorded under Section 67 of NDPS Act in Exs.P.22 and P.11 respectively. Exs.P.22 and P.11 being retracted, they remain uncorroborated by any other materials. The learned Senior Counsel further submitted that the statements Exs.P.22 and P.11 are not the voluntary statements since even according to P.Ws.1 and 2, the accused 1 and 3 were taken from the airport at 2.00a.m., on 15.09.2002 and they were produced before the learned Magistrate only on 16.09.2002 at about 11.30a.m, which is more than 24 hours and further though according to P.Ws.1 and 2 summons were given to A.1 and A.3 for their appearance before the NCB Office, they were immediately taken to the NCB office by the officers and the statements are said to have been recorded only at 9.00a.m. It is only to coerce the accused, they have been taken to NCB office forcibly and statements were obtained. Though certain features are mentioned in the statement, they have not been verified subsequently by way of investigation to strengthen the voluntariness of the statement. On the other hand, the statements are contradictory to each other. As per Ex.P.11, the statement of the third accused, on 08.04.2002, the first accused was seen by him in Madras near Pollichalur. But as per Ex.P.22, the statement of the first accused he had gone to Srilanka even on 07.04.2002. 10. The learned Senior Counsel further submitted that merely because statement is lengthy and it contains so many particulars, it should not be taken as indication of voluntariness of the accused and features which are not connected to the case mentioned in the statement being not verified, no reliance should be placed on those statements. 11. The learned Senior Counsel also relied on the following decisions to substantiate his contentions: a) AIR 1968 SC 832 (Haroon Haji Abdulla vs. State of Maharashtra) b) (2007)8 SCC 254 (Mohtesham Mohd. Ismail vs. Special Director, Enforcement Directorate and another) c) AIR 1954 SC 4 (Muthusamy vs. State of Madras) d) 2008(2) SCC(Cri.) 264 (Aloke Nath Dutta and Others vs. State of West Bengal) e) (2008)3 MLJ (Cri.) 635 ( Noor Aga vs. State of Punjab and another) f) 2009(2) Crimes 171 ( U.O.I vs. Bal Mukund and others) g) AIR 1963 SC 1094 (Pyare Lal Bhargava v. State of Rajasthan): h) AIR 1978 SC 1248 (Sankaraia vs. State of Rajasthan): https://hcservices.ecourts.gov.in/hcservices/ 12. The learned counsel appearing for the second accused submitted that the accused is in jail nearly for the past 8 years and prayed for some leniency. The learned counsel further submitted that the accused is sentenced to pay a fine amount of Rs.1 lakh for each count, in total to pay fine amount of Rs.3 lakhs in default to undergo further three years rigorous imprisonment, but he is not in a position to pay the fine amount. 13. Per contra, Mr.R.Dhanapal Raj, learned Special Public Prosecutor for NCB Cases submitted that the possession of contraband with the second accused is established to prove the evidence of A.1 and A.2 and it is also corroborated by the evidence of mahazar witness P.W.8. The second accused also given his voluntary statement recorded in Ex.P.38 which reveals the involvement of these two accused which was recorded five months earlier to the arrest of the first and third accused. The confession of the second accused is admissible against the accused 1 and 3 and further the accused 1 and 3 also gave their voluntary statements. 14. The Special Public Prosecutor further submitted that according to the prosecution, confessional statements were given by the accused voluntarily and the initial burden on the prosecution being discharged, the burden is shifted on the accused to prove that which was involuntary. The learned Special Public Prosecutor also relied on the decisions reported in (i) 1996 (8) ELT 258(S.C) (Naresh J Sukhawani Vs. Union of India) and (ii) 2002(3) Supreme 9 (Devendar Pal Singh vs. State NCT of Delhi and another). 15. Mr.B.Kumar, learned Senior Counsel appearing for the first and third accused/appellants submitted that the descriptions given about the Munawar and Shraf by the second accused are entirely different from the features of the accused 1 and 3. The name of the third accused is only Sabri and not Shraf. 16. This Court considered the submission made by all the parties and perused the records carefully. 17. As per the evidence of P.W.1, Intelligence Officer, NCB, Chennai, he received an information at 5.40p.m., on 09.04.2002, about the accused Abdeen Mohamed Gazali indulged in drug traffcking. On recording the information Ex.P.1, P.W.1 proceeded to the International Airport, Chennai, along with other officers and identified the second accused, Abdeen Mohamed Gazali at the security area. In the presence of P.W.8, Security Officer of Sri Lanka Airlines and one another person P.W.1 informed the second accused about their intention to search him and his belongings and also about his right to be searched either before the Judicial Magistrate or before the Gazetted Officer. The second accused declined the offer. The second accused was having one green colour rexsin bag as a hand- https://hcservices.ecourts.gov.in/hcservices/ luggage and he was having a Tag No.UL 725051 for having checked already a suitcase. The concerned suitcase was retrieved from the Airlanka authorities. The second accused informed P.W.1 that he had concealed about 5 Kilograms of heroin in the suitcase and he opened a suitcase, removed clothes which were kept inside and then removing the falls bottom of the suitcase took out a polythene packet containing brown colour powder and he handed over it to the Intelligence Officer. The Intelligence Officer took out small quantity from the transparent polythene packet and tested with the field test kit, which answered positive for heroin. On weighment the packet contained 5.010 kilograms of heroin. Two samples weighing each 5 grams were also taken and those sample packets are all sealed. A detailed mahazar Ex.P.2 was prepared and it was signed by the independent witness P.W.8 and another. The mahazar was read over to the second accused, a copy was served to him and his signature was also obtained. P.W.7, other Intelligence Officer also issued summons to the second accused for enquiry. The second accused was brought to the NCB Office along with the seized properties. The evidence of P.W.1 established the facts about the seizure of contraband of heroin from the second accused. The samples which were taken from the seized contraband were sent for chemical analysis and they also analysed by P.W.4 and P.W.5 and Exs.P.30 test report also had been given by them stating that the sample answered the test for the presence of Di-Acetyl-Morphine (heroin) and the percentage of weight of Di-Acetyl-Morphine was 56.5%. The evidence of P.W.1 is also corroborated by the evidence of P.W.7, another Intelligence Officer who had accompanied P.W.1. P.W.8 independent witness also spoken about the search and seizure of the contraband from the second accused. The evidence of P.W.8 supports the evidence of P.W.1 and P.W.7. In the cross examination of P.W.8, nothing has been brought out to discredit his evidence. 18. The prosecution had established its case beyond reasonable doubt that the second accused was in possession of heroin of commercial quantity. 19. As per the evidence of P.W.7, after the contraband was seized from the second accused in the airport, summons under Section 67 of the NDPS Act was served to the second accused at his spot and he was directed to appear before the NCB Office. On 10.04.2002, the second accused gave statement before P.W.7, Intelligence Officer. P.W.7 recorded the statement given by the second accused in Tamil which is Ex.P.38, and it was read over to P.W.7 and his signature was also obtained. The statement given by the second accused revealed the involvement of two more persons by name Munawar and Shraf. The second accused has not retracted his statement at any earlier stage and denied only during trial. He had stated that during the examination under Section 313 Cr.P.C., he was taken to the NCB Office and his signature was obtained in the statement written by the Officers and he did not know the contents of the statement. The second accused https://hcservices.ecourts.gov.in/hcservices/ has not stated that he was ill-treated or threatened for getting his signature in the statement. Based on the statement of Ex.P.32, the Intelligence Officer were in search of the persons by name Munawar and Shraf. On 14.09.2002, P.W.2 the another Intelligence Officer received a message that two persons by name Mohamed Munawar and Shraf were to come to the airport on 15.09.2002 at about 02.00a.m. P.W.2 recorded the said information in Ex.P.20. P.W.2 along with P.W.1 and other officers went to the Chennai Airport at 00.30hours in the night and they were searching for those two persons and at about 2.00a.m., on seeing the accused 1 and 3 at the arrival hall of the airport intercepted and enquired them. P.W.2 gave summons to the first accused and P.W.1 gave summons to the third accused for the appearance before the NCB Office. They came to the NCB Office along with accused 1 and 3. According to P.W.2, the first accused gave voluntary statement Ex.P.22 on 15.09.2002 at 9.00a.m. As the third accused did not know to write Tamil his statement was recorded by P.W.1 and it was read over to him and his signature was obtained in Ex.P.11. In pursuance of the statement Ex.P.11 and P.22, no other incriminating material connected to this case was seized. 20. The point for consideration is "Whether accused 1 and 3 could be held liable on the basis of their confessional statement recorded from them or on the basis of the confessional statement recorded from the co accused?" 21. While the accused were questioned under Section 313 Cr.P.C, the first accused told that his statement and signatures were obtained on threat and the third accused stated that he did not know what was written in the statement and his signature was obtained. 22. It was brought to the notice of this Court by the learned Senior Counsel appearing for accused 1 and 3 that the accused retracted their confession statements even at the earlier stage even after the remand in the Central Prison, Chennai. 23. On a perusal of records, this Court could see the two letters of the accused 1 and 3 sent to the Special Judge, Special Court for NDPS Act Cases, through the Superintendent for Central Prison received by the Court on 23.09.2002 which find place in the records. The letters sent by the accused 1 and 3 to the Court have not been marked as exhibits, but they have been tagged along with original statements recorded from the accused 1 to 3 under Section 313 Cr.P.C. In the original records, as per page number, the covering letter of the Superintendent, Central Prison is at Page-397, the letter of the first accused is at page-399, the covering letter of the Superintendent, Central Prison is at Page-401, the letter of the third accused to the Court is at Page-403. The first accused in his letter had retracted the statement given to the NCB Officers and stated his statement was obtained under coerce. The third accused also retracted his confessional statement and his statement was https://hcservices.ecourts.gov.in/hcservices/ obtained by ill-treatment. Within a week from the date of arrest, the accused 1 and 3 have retracted their statements given to the NCB Officers. As far as accused 1 and 3 are concerned, there is no other material except their confessional statements. 24. This Court is now to consider "Whether the confession of the accused 1 and 3 being retracted at the earliest stage could they be relied upon and to what extent? This Court is also to consider further "How far the confessional statement of the co-accused (A.2) could be used against accused 1 and 3 for their conviction." 25. The Honourable Supreme Court has held in the following decisions as follows: a. AIR 1954 SC-4 (Muthuswamy vs. State of Madras): "6.Now we wish to avoid laying down any hard and fast rules regarding the necessity of corroboration in the case of retracted confessions. But apart from any general rule of prudence, the circumstances indicated above are sufficient to require corroboration in this particular case." b. AIR 1963 SC 1094 (Pyare Lal Bhargava v. State of Rajasthan): "7. The second argument also has no merits. A retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and was voluntarily made. But it has been held that a court shall not base a conviction on such a confession without corroboration. It is not a rule of law, but is only a rule of prudence. It cannot even be laid down as an inflexible rule of practice or prudence that under no circumstances such a conviction can be made without corroboration, for a court may, in a particular case, be convinced of the absolute truth of a confession and prepared to act upon it without corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars. c. 1972 SCC(Cri) 198 (Bharat v. State of U.P.): “7. Confessions can be acted upon if the court is satisfied that they are voluntary and that they are true. The voluntary nature of the confession depends upon whether there was any threat, inducement or promise and its truth is judged in the context of the entire prosecution case. The confession must fit into the proved facts and not run counter to them. When the voluntary https://hcservices.ecourts.gov.in/hcservices/ character of the confession and its truth are accepted, it is safe to rely on it. Indeed a confession, if it is voluntary and true and not made under any inducement or threat or promise, is the most patent piece of evidence against the maker. Retracted confession, however, stands on a slightly different footing. As the Privy Council once stated, in India it is the rule to find a confession and to find it retracted later. A court may take into account the retracted confession, but it must look for the reasons for the making of the confession as well as for its retraction, and must weigh the two to determine whether the retraction affects the voluntary nature of the confession or not. If the court is satisfied that it was retracted because of an afterthought or advice, the retraction may not weigh with the court if the general facts proved in the case and the tenor of the confession as made and the circumstances of its making and withdrawal warrant its user. All the same, the courts do not act upon the retracted confession without finding assurance from some other sources as to the guilt of the accused. Therefore, it can be stated that a true confession made voluntarily may be acted upon with slight evidence to corroborate it, but a retracted confession requires the general assurance that the retraction was an afterthought and that the earlier statement was true. This was laid down by this Court in an earlier case reported in Subramania Goundan v. State of Madras.” (1958 SCR 428) d. AIR 1978 SC 1248 (Sankaraia vs. State of Rajasthan): "49. Another circumstance which reinforces the conclusion about the confession being voluntary is that it was not retracted at the earliest opportunity. The confession was recorded on June 14, 1974. The trial of the accused commenced on January 10, 1975 when charges were framed and read over and explained to the appellant by the Sessions Judge. At the trial, he was defended by Shri Ganpat Ram, who, as already observed, was an experienced lawyer. The trial dragged on for several months, because witnesses were examined piece-meal on different dates. The prosecution evidence was closed on June 14,1975 and the accused was then examined under S.313 Cr.P.C. It was during such examination, the appellant for the first time retracted the confession and took up the plea that he had made it under duress of