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High Court of Judicature at Madras
R. MALA
Badrilal Sharma & Others
Versus
State by The Intelligence Officer Narcotics Control Bureau
Criminal Appeal Nos. 814 of 2009 & 8, 33 & 40 of 2010
Decided on : 18-06-2012
The Court considered the admissibility of Section 67 statements, compliance with Sections 42, 50, and 67 of the NDPS Act, and the applicability of Section 30 of the NDPS Act in a case involving the seizure of heroin from the accused. The Court held that Section 50 of the NDPS Act applies only where personal search of a person is involved and not for search of a bag, briefcase, container, etc. carried by the accused persons. The Court also held that Section 67 statements given by the accused were voluntary and admissible in evidence, and that the accused were not entitled to invoke Section 30 of the NDPS Act as they were in conscious possession of the contraband.
Fact of the Case:
The accused were intercepted while traveling in a car and a bag containing 5.250 kgs of heroin was seized from them. The accused gave voluntary statements under Section 67 of the NDPS Act admitting their involvement in the offense. The accused were convicted and sentenced for offenses under Sections 8(c) r/w 21(c) and 29 of the NDPS Act.
Finding of the Court:
The Court held that Section 50 of the NDPS Act applies only where personal search of a person is involved and not for search of a bag, briefcase, container, etc. carried by the accused persons. The Court also held that Section 67 statements given by the accused were voluntary and admissible in evidence, and that the accused were not entitled to invoke Section 30 of the NDPS Act as they were in conscious possession of the contraband.
Issues: 1. Whether Section 50 of the NDPS Act is complied with or not? 2. Whether the provision of Section 42 of the NDPS Act is complied with or not? 3. Whether non examination of Drivers and non seizure of vehicle/car are fatal to the case of the prosecution? 4. Whether Section 67 statement of the accused is reliable? 5. Whether A2 is entitled to invoke Section 30 of NDPS Act?
Ratio Decidendi: 1. Section 50 of the NDPS Act applies only where personal search of a person is involved and not for search of a bag, briefcase, container, etc. carried by the accused persons. 2. Section 67 statements given by the accused were voluntary and admissible in evidence. 3. The accused were not entitled to invoke Section 30 of the NDPS Act as they were in conscious possession of the contraband.
Final Decision: The Court dismissed the appeals and confirmed the conviction and sentence imposed on the accused by the Special Court.
1. The appeals are arising out the judgment of conviction and sentence, dated 18.12.2009, made in C.C.No.55 of 2005, on the file of the Additional Special Court under N.D.P.S. Act, Chennai, whereby the accused 1 to 4 were convicted for the offences under Sections 8(c) r/w 21(c) and 29 of NDPS Act, 1985. Accused 1 to 4 were convicted for the offences under Section 8(c) r/w 21(c) of NDPS Act and sentenced them to undergo 10 years rigorous imprisonment each and imposed a fine of Rs.1,00,000/- each in default in payment to undergo rigorous imprisonment for one year each and further they were convicted for the offences under Section 8(c) r/w 29 of NDPS Act and sentenced to undergo ten years rigorous imprisonment each and to pay a fine of Rs.1,00,000/- each in default in payment to undergo one year rigorous imprisonment each.
2. The Intelligence Officer, NCB, Chennai, has lodged a complaint that the accused A1 to A4 and two absconding accused namely, Guddu Singh @ Vikram Singh & Ravi have entered into criminal conspiracy at Chennai, Nellore in Andhra Pradesh and Sri Lanka to procure, possess, transport and attempt to export out of India 5.250 kgs. of heroin, which came to be seized on 24.10.2004 at about 12.00 hours at G.N.T. Road, 100 feet road junction, Madhavaram from A1 to A4, who were travelling in White Ambassador car bearing Registration no.TN01K0923 proceeding towards Chennai, when it was intercepted by the NCB Officers. Hence, the charge sheet has been filed against the accused A1, A3 and A4 for the offences under Sections 8(c) r/w 21(c), 28 and 29 of NDPS Act, 1985 as amended by Act 9/2001 and against A2 for the offences under Sections 8(c) r/w 21C, 27A, 28 and 29 of NDPS Act, 1985 as amended by Act 9/2001 and under Section 3(3) of Passport Entry in India Act, 1920 and under Section 14 of the Foreigner Act, 1946.
3. Since the absconding accused namely, Guddu Singh @ Vikram Singh and Ravi were not able to be procured the case against them, the case was split up as new C.C.No.9 of 2007.
4. The prosecution case is based on the evidence let in by the prosecution witnesses, which are stated as follows:
(i) P.W.7-Aruldoss, who is working as Intelligence Officer, NCB, South Zone Unit, received information on 23.10.2004 at 9.00 p.m. and he recorded the information and submitted it to P.W.6/Gunabalan, Superintendent. The information is Ex.P72, in which, it was stated that one Prem @ Kannan @ Sudeshwaran resident of Nanganallur, Chennai, is procuring Narcotic Drugs from Guddu Singh resident of Rajasthan with the assistance of one Bapulal resident of Pattalam, Chennai, for trafficking it from Chennai to Srilanka and that Prem @ Kannan @ Sudeshwaran and Bapulal have visited Rajasthan and made arrangements for the supply of heroin and Guddusingh had sent 5 kgs. of heroin through his two persons, who were identified to Bapulal by Guddusingh and those two persons are arriving at Chennai on the next day by Jaipur Express and Bapulal and Kannan have planned to leave at 10.00 p.m. on 23.10.2004 to Nellore, Andhrapradesh, in a white Ambassador Car bearing Registration no.TN01K0923 to receive those two persons along with heroin and after they reach Chennai, Prem @ Kannan @ Sudeshwaran will receive the heroin and smuggle it out to Srilanka.
(ii) P.W.6/Gunabalan, P.W.7/Aruldoss and P.W.10/Sendhil Murugan made a discussion about the information on 23.10.2004 till 10.00 p.m. In Ex.P72-Information, P.W.6 made an endorsement giving order to proceed with the case and that has been noted by
P.W.7 and P.W.10 as per Ex.P59. On 24.10.2004, at about 9.00 a.m., P.W.6, P.W.7 and P.W.10 and two other staff members viz., one Sepoy and Driver left NCB office in the Mini bus bearing Registration no.TN09C3113 and reached the scene of occurrence at 11.00 a.m. On the instruction of P.W.6, P.W.7 has procured two independent witnesses (i.e.) by name Gopi/P.W.8 and one Krishnamurthy. When P.W.6 to P.W.8,
P.W.10 and Krishnamurthy were mounting surveillanc
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