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2019 Supreme(Mad) 2108
IN THE HIGH COURT OF MADRAS
P.N. PRAKASH, J.
K. Ramesh - Appellant
Versus
The Intelligence Officer, Narcotic Control Bureau - Respondent
Crl. A. Nos. 1 and 10 of 2016
Decided On : 23-07-2019
Advocate Appeared:
For the Appellant : R.C. Paul Kanagaraj and N.P. Kumar, Special Public Prosecutor
For the Respondent: N.P. Kumar, Special Public Prosecutor and R.C. Paul Kanagaraj
Headnote:
Criminal Procedure Code - Section 207/ 313 – Jurisdictional - Scientific Assistant- Legal evidence - Rigorous imprisonment - After introducing themselves NCB officials questioned the inmates and seized a suitcase with a false cavity grams of white color substance, believed to be heroin officers tested substance with Narcotic Field Test Equipment which answered positive for heroin officers drew two representative samples of 5 grams each and thereafter, sealed samples and balance contraband by affixing NCB seal thereon - A spot was prepared - Three accused were summoned to office of NCB, where their statements under Section 67 of Narcotic Drugs and Psychotropic Substances Act were recorded statements were marked and respectively - Thereafter, all the three accused were placed under arrest and they were produced before the jurisdictional Court for remand. The seized contraband, along with the samples, were also produced before the Special Court for NDPS Act cases and a requisition was given to send one of the samples to the Tamil Nadu Forensic Sciences Laboratory, for chemical examination – Held, Had been caught by the NCB officials with contraband outside the room, then Section 30 would have had no application. Therefore, the evidence on record falls short for establishing the charge under Section 8(c) r/w. 22-C of the NDPS Act, but, is sufficient enough to fix criminal liability under Section 30 of the NDPS Act - In view of the above, this Court convicts (A2) for preparing to take custody of a drug and is awarded the minimum sentence viz., one-half of the minimum term - Minimum term for offence under Section 8(c) r/w. 22-C of the NDPS Act is ten years rigorous imprisonment and fine of which has been awarded by Trial Court. Taking into consideration the overall facts and circumstances of the case and bearing in mind the penury and the fact that he was not involved in any such case earlier, the sentence of ten years rigorous imprisonment is reduced to five years rigorous imprisonment – Consequently fine amount is also reduced in default to undergo one month rigorous imprisonment - Coming to the appeal filed by the State challenging the acquittal, this Court does not find any material worth the salt to implicate in the offence because (A3) was only a distant relative of who badly needed money and at the instance joined him to meet fateful hour - Beyond that there is absolutely no material to establish his involvement in offence - As regards though subjectively one can infer that they were operating confines of Central Prison, Madurai, in the absence of legal evidence, they cannot be convicted on the basis of subjective satisfaction - In and another Supreme Court has held that when two views are possible, the one the accused merits consideration relevant passage from the said judgment is as follows – Appeal dismissed
JUDGMENT :
P.N. PRAKASH, J.
1. These criminal appeals have been preferred against the judgment and order dated 28.07.2015 passed in C.C. No. 14 of 2010 in R.R. No. 1 of 2010 in N.C.B.F. No. 48/1/1/2010-NCB-MAS on the file of the I Additional Special Court for the NDPS Act Cases, Chennai.
2. Shorn of the minute details, a precis of the facts leading to the institution of these criminal appeals are as follows:
2.1 Srikanth (PW1), an officer of the Narcotic Control Bureau (in short "the NCB") received information that Mohammed Aslam (A1) has brought 1 kg. of heroin, a narcotic drug, from Mumbai to Chennai and has checked in to Room No. 208, Supreme Guest House, Egmore, and that one Ramesh (A2) and Sugandan (A3) were coming there to collect the contraband for onward transport to Sri Lanka. This information was recorded on 17.01.2010 at 10.00 p.m. vide Ex-P1 and was placed before Gunabalan (PW4), Superintendent of the NCB, an officer of gazetted rank. A team of officers led by Gunabalan (PW4) went to the said room along with two independent witnesses viz., Arumugam (PW7) and Srinivasan (not examined). In that room, the NCB officials found three persons viz., Mohammed Aslam (A1), Ramesh (A2) and Sugandan (A3). After introducing themselves, the NCB officials questioned the inmates and seized a suitcase (M.O. 2) with a false cavity and 660 grams of white colour substance, believed to be heroin. The officers tested the substance with the Narcotic Field Test Equipment, which answered positive for heroin. The officers drew two representative samples of 5 grams each and thereafter, sealed the samples and the balance contraband by affixing the NCB seal thereon. A spot mahazar (Ex-P2) was prepared. The three accused were summoned to the office of the NCB, where, their statements under Section 67 of the Narcotic Drugs and Psychotropic Substances Act (for brevity "the NDPS Act") were recorded. The statements of Mohammed Aslam (A1), Ramesh (A2) and Sugandan (A3) were marked as Ex-P52, Ex-P12 and Ex-P49, respectively. Thereafter, all the three accused were placed under arrest and they were produced before the jurisdictional Court for remand. The seized contraband, along with the samples, were also produced before the Special Court for NDPS Act cases and a requisition was given to send one of the samples to the Tamil Nadu Forensic Sciences Laboratory, for chemical examination.
2.2 The sample was examined by Maria Selvi Roselin (PW9), Scientific Assistant Gr. I, who, in her evidence as well in the report (Ex-P93), has stated as under:
"Detected Alprazolam in the exhibit and also detected caffeine and phenolphthalein (diluents) in the exhibit."
2.3 During the course of investigation, it came to light that Sabesan (A4) and Sekar (A5) who were prisoners in the Central Prison, Madurai, had masterminded the operation.
2.4 After examining various witnesses and completing the investigation, the authorized officer of the NCB filed a complaint before the Special Court for the NDPS Act cases, which was taken on file as C.C. No. 14 of 2010 against six accused viz., Mohammed Aslam (A1), Ramesh (A2), Sugandan (A3), Sabesan (A4), Sekar (A5) and Ukkar Singh (A6-Asconding).
2.5 In the mean time, Mohammed Aslam (A1), Ramesh (A2) and Sugandan (A3) were released on bail, on the ground that the seized material was not heroin, as projected by the prosecution during investigation, but Alprazolam, which is a psychotropic substance under the NDPS Act. Nevertheless, the complaint was filed on the premise that the seized article would also fall within the ambit of the NDPS Act.
2.6 On the appearance of A1 to A5, they were furnished with the relied upon documents under Section 207 Cr.P.C. Since the involvement of Ukkar Singh (A6) in the offence came to light during investigation, he was arrayed as A6 in the complaint. Since the NCB was unable to apprehend him during investigat
