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2010 Supreme(Mad) 1104
High Court of Judicature at Madras
T. SUDANTHIRAM
Mohammed Jameen Mohamed Munawar & Others
Versus
Intelligence Officer NCB South Zone
Criminal Appeal No.707 of 2006
Decided On :19-03-2010
For the Appellants:B.Kumar Senior counsel for T.S. Sasikumar, Advocate.
For the Respondent: R.Dhanapal Raj, Special Public Prosecutor for NCB Cases.
Headnote:A. NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 SECTION 67 -
Confession statement by accused, and co-accused - Which should be relied on Question whether confession of A1 and A3 being retracted at earlier stage, would be relied upon and to what extent - HELD - based on several decision of Supreme Court (i) If statement of accused is recorded under Section 67 NDPS Act, which is incriminating against himself amounting to confessional statement, and if held to be voluntary in nature, conviction can be solely based upon such statements even without corroboration, (ii) Even if such confessional statement is retracted, if it is proved by Prosecution beyond reasonable doubt that confession was voluntary in nature, conviction can be based solely upon such statement - Burden is on accused to prove that statement was obtained by threat or promise - If reasonable doubt is created by accused, burden is shifted to Prosecution to prove beyond doubt that statement was given voluntarily (iii) If confession of accused under Section 67 NDPS Act is retracted, within a reasonable time at the earliest opportunity, then to place reliance on such confessional statement, rule of prudence requires court to seek for corroboration on general particulars - On facts as A1 and A3 were already implicated in this case by IO, they should not have been compelled to give a statement - Held confession statements not to be relied upon.
B. INDIAN EVIDENCE ACT, 1872 - SECTION 30 -
Question whether confessional statement of A2 would be relied upon to convict A1 and A3 by taking it as corroborative material - Section 30 is not specific about confession given before court or authority or before any other individual - Court could not use confessional statement of A2 against A1 and A3 - Conviction and sentence set aside.
C. BURDEN OF PROOF - See NDPS Act, Section 67.
D. CONFESSION STATEMENT OF CO-ACCUSED - See NDPS Act, Section 67.
Result: Criminal Appeal allowed.
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 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 and 3 are likely to come to Anna
