Back
2022 Supreme(Online)(Mad) 56615
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dr. G.Jayachandran, J
Yusuf @ Asif – Appellant
Versus
State Rep. by, Intelligence Officer, Narcotic Control Bureau, South Zone, Chennai – Respondent
Crl.A.No.379 of 2002
For the Appellants/Petitioners: Mr.B.Kumar, Senior Counsel, for Mr.R.C.Paul Kanagaraj
For the Respondents: Mr.N.P.Kumar, Spl.Public Prosecutor (NDPS cases)
Possession of narcotics facilitates presumption of culpable mental state; procedural safeguards under NDPS Act were met.
Headnote:(A) NDPS Act - Sections 8(c), 21, 25 & 29 - Criminal Appeal filed against the conviction for drug trafficking- Conviction upheld as the appellants were found in possession of heroin, and procedural safeguards under Sections 41 and 42 were deemed satisfied by the court - Critical reliance on the presumption of culpable mental state under Section 35 based on possession and absence of evidence against the accused. (Paras 1, 3, 7, 24, 32)
(B) Evidence and Procedure - Appellant’s arguments on violation of mandatory provisions dismissed - Search conducted sanctioned by Gazetted Officer and appropriate procedures upheld. (Paras 13, 31)
Facts of the case:
Appellants were intercepted in a lorry with heroin during a narcotics operation, leading to their conviction by the trial court based on substantial evidence, including statements and incriminating evidence.
Findings of Court:
The appellants were properly convicted under NDPS Act based on their possession and the evidence brought forth, including testimony of officers and documentation related to the seizure.
Issues: Whether the search complied with statutory requirements under NDPS Act and the implications of possessing narcotics.
Ratio Decidendi: The court concluded that all legal provisions for search and seizure were adhered to, and that possession of contraband established culpability under the Act.
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. conviction based on possession of heroin. (Para 1 , 3 , 4) |
| 2. legal arguments against procedural compliance. (Para 6 , 10 , 12) |
| 3. court's response to procedural challenges. (Para 20 , 21 , 23 , 30) |
| 4. final ruling upholding trial court's conviction. (Para 31 , 32) |
JUDGMENT
The appellants being aggrieved by the conviction and sentence passed by the Additional Special Court for NDPS Act cases, Chennai in C.C.No.113 of 2000, vide judgment dated 15/03/2002, had preferred this appeal. Pending appeal, the 4th appellant Ganesh Ram died and appeal against him got abated and same taken on record vide order dated 15/07/2022.
2. The gist of the prosecution case:
On 27/03/2000, at 10.30 pm, Mr.F.Rajasekar (P.W.1), the Intelligence Officer of NCB, South Zone Unit, Chennai, got a secret information through his informant that one Yusuf @ Asif of Mansur, Madhya Pradesh is involved in smuggling heroin from Madhya Pradesh to Chennai. He has presently transported about 20 kgs of heroin to Chennai, in a lorry bearing registration No.MP-14-G- 6424. The said lorry will be parked near Puzhal Central Jail on 28/03/2000 early morning. At that time, Asif along with the lorry drivers will be present. If the said lorry is intercepted, the contraband can be seized.
3. Based on this information, (P.W.1) Rajasekar along with the team of Officers went to the place mentioned by the informant and kept surveillance. At about 3.00 a.m, the lorry was intercepted and found 4 persons in the lorry. After introducing and disclosing their intention, the occupants were questioned whether they are in possession of any narcotic drug. The 1st accused Yusuf @ Asif took two jute bags and gave it to Rajasekar saying it contains 20 kgs of heroin. On opening those two jute bags, 14 big and 12 small polythene packets containing light brown powder was found. The powder when tested with the test kit, answered positive for heroin. After drawing samples from each packets, they were seized under mahazar. All the four persons were arrested and after getting the analyst report confirming the seized substance is Diacetylmorphine (heroin), complaint under Sections 8 (c) r/w 21, 25 and 29 of NDPS Act was lodged.
4. To prove the charges, the complainant examined 9 Witnesses. 43 Exhibits and 30 Material Objects marked. On the side of the defence, 6 documents were marked.
5. The Trial Court held all the four accused guilty of the charges framed against them and convicted as below:-
| Petitioner/ Accused | Conviction | Sentence |
| A1 | Convicted for the offence under Section 8 (c) r/w Section 21 and 29 of NDPS Act. | To undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/-, in default to undergo rigorous imprisonment for one year. |
| A2 | Convicted for the offence under Section 8 (c) r/w. Section 21, 25 and 29 of NDPS Act. | To undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/-, in default to undergo rigorous imprisonment for one year. |
| A3 | Convicted for the offence under Section 8 (c) r/w. Section 21, 25 and 29 of NDPS Act. | To undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/-, in default to undergo rigorous imprisonment for one year. |
| A4 | Convicted for the offence under Section 8 (c) r/w Section 21 and 29 of NDPS Act. | To undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/-, in default to undergo rigorous imprisonment for one year. |
6. Mr.B.Kumar, Senior Counsel appearing for the appellants assails the trial Court judgment on three folds:-
i). The trial Court failed to consider the violation of mandatory provisions under NDPS Act .
ii). The trial Court failed to consider the factual contradictions regarding prior information for recovery and of drawing samples and place of arrest.
iii). The statements of the accused persons recorded under Section 67 of the NDPS Act has been heavily relied upon to convict the accused persons though it is not admissible in
