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2018 Supreme(Mad) 3000
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
G. Jayachandran, J.
John Susai Navies Mannala @ Mannala – Appellant
Vs.
State – Respondent
Criminal Appeal No. 66 of 2014, Criminal Miscellaneous Petition No. 6521 of 2018
Decided On : 15-10-2018
T. Mohan, Adv., M. Jegadeesh Pandian, Adv., C. Arul Vadivel @ Sekar, Adv., A. Robinson, Adv.
The conscious possession of contraband and the burden of the accused to disprove possession were central legal principles established in the judgment.
Headnote:
NDPS Act - Smuggling of Narcotic Drugs - Section 8(c) read with 20(b)(ii)(B), 8(c) read with 21, 8(c) r/w 28, 8(c) r/w 29 - The court discussed the charges against the accused under the NDPS Act, 1985, and the specific sections referred to in the judgment. The court highlighted the conscious possession of the contraband and the burden of the accused to disprove his possession. The prosecution evidence was found insufficient to prove certain charges, leading to the setting aside of some convictions and sentences.
Fact of the Case:
The appellant was convicted and sentenced for charges under the NDPS Act, 1985 related to smuggling of heroin and ganja. The second accused was acquitted. The appellant challenged the conviction based on the confession statement and lack of corroboration. The appellant also sought leniency due to financial depravity and poor health.
Finding of the Court:
The court found that the appellant had conscious possession of the contraband, leading to the recovery of heroin and ganja. However, the prosecution failed to prove other charges of conspiracy and attempt to smuggle the contraband to Srilanka. The court partly allowed the appeal, confirming some convictions and modifying default sentences.
Issues: The issues revolved around the sufficiency of evidence, the appellant's possession of the contraband, contradictions in the prosecution's case, and the appellant's plea for leniency.
Ratio Decidendi: The court held that the appellant's conscious possession of the contraband could be inferred from the information leading to its recovery. The prosecution's failure to prove certain charges resulted in the setting aside of some convictions and sentences. The court also exercised discretion in modifying default sentences based on the appellant's financial situation and health.
Final Decision: The appeal was partly allowed, confirming some convictions and modifying default sentences. The appellant's plea for leniency was considered, and the court directed the prison authorities to provide necessary medical assistance.
G.Jayachandran, J.
The Judgment and sentence dated 30.12.2013 passed in C.C.No.93 of 2009 by the learned Additional District and Sessions Judge, Special Court for E.C. Act, Pudukkottai are being challenged by the appellant/Accused No.1 in the present Criminal Appeal.
2. The appellant herein is the first accused in C.C.No.93 of 2009 on the file of Special Court of Essential Commodities and NDPS Act Cases, Pudukottai. In the complaint filed by the Intelligence Officer, NCB, this appellant and 8 others were arrayed as accused for offences under the NDPS Act, 1985. In the complaint, Usman @ Nepolean (A-5), Jamal @ Lucky (A-6), Shakil (A-7), Vimal (A-8) and Rogan (A-9) were shown as absconding accused and the case against them were split up as C.C.No.105 of 2009. Pending trial, Vasantha Kumar (A-3) jumped bail and the case against him got split up from the main case and numbered as split up case in C.C.No.27 of 2011. Later, during the course of the trial, yet another accused by name Annachi @ Arulraj (A-4) died.
3. The Special Court tried the remaining accused, John Susai Navis Mannala @ Mannala (A-1) and Andrews (A-2) for the charges for conspiracy, to possess and for attempt to illegally smuggle out of India to Srilanka, 1 kg of heroin and 3 kg of ganja.
(i) under Section 8(c) read with 20(b)(ii)(B), 8(c) read with 21 punishable under Section 21(c);
(ii) under Section 8(c) r/w 28; and
(iii) under Section 8(c) r/w 29 of the NDPS Act.
4. The Trial Court held the first accused Mannala, guilty and convicted and sentenced him to undergo 10 years rigorous imprisonment and to pay a fine of Rs. 1,00,000/- in default to undergo one year rigorous imprisonment for each of the offences under Sections 8(c) read with 21, 8(c) read with 28 and 8(c) read with 29 of the NDPS Act. The Trial Court also sentenced him to undergo 3 years rigorous imprisonment and to pay a fine of Rs. 10,000/- in default to undergo 6 months rigorous imprisonment for offence under Section 8(c) read with 20(b)(ii)(B) of NDPS Act, 1985. The period of sentence for the substantive offences (4 in numbers) ordered to run concurrently with a direction to set off the period of sentence already undergone. Thus, the total period of imprisonment was 10 years and total fine amount to be paid was Rs. 3,10,000/-. The default sentence was 3 years and 6 months.
5. The second accused Andrews was acquitted of all charges for want of proof.
6. The learned counsel appearing for the appellant makes his submission on two folds:
(i) First, it is contented that, the Trial Court has miserably failed to appreciate the evidence for prosecution in proper perspective. Solely based on the so-called confession statement of the accused given to PW-4 which was recorded under section 67 of the NDPS Act, the Trial Court has convicted the accused. The circumstances under which the confession statement extracted from the accused will prove beyond doubt that it was obtained under compulsion. Further, the heroin or ganja alleged to have been in the possession of this accused was admittedly recovered from a place called Nalupannai, buried in beach sand and not from the physical possession of this appellant. The Trial Court has acquitted the second accused for want of proof. All other accused persons are still at large and they are all Srilankan nationals even according to the prosecution. Except the so-called confession of the appellant (Ex.P-39) and the statement of the absconding accused Vansanthakumar, there is no material to prove that this appellant and Vasanthakumar (absconding accused in the split up case in C.C.No.27 of 2011) know each other or this appellant received the seized contraband from Vansanthakumar. In the absence of any corroboration, merely relying on the statements recorded under Section 67 of the NDPS Act, conviction against the appellant is unsustainable. The manner in which the summons issued to this appellant to give his statement, the contradictions among the prosecution witnesses and
