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Vasu Deva Vimal KaliPerumal v/s The Intelligence Officer, Narcotics Control Bureau, Chennai Zonal Unit, Chennai

    Crl.A.No. 719 of 2022 & Crl.M.P.No. 9362 of 2022

    Decided On, 02 September 2022

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE D. BHARATHA CHAKRAVARTHY

    For the Appellant: R.C. Paul Kanagaraj, Advocate. For the Respondent: N.P. Kumar, Special Public Prosecutor for NCB Cases.



Judgment Text

(Prayer: Criminal Appeal filed under Section 374(2) of Criminal Procedure Code, praying to call for the records and set aside the conviction of the appellant in C.C.No.39 of 2014, dated 28.06.2022, by the Principal Special Court under EC & NDPS Act, Chennai, by allowing this appeal.)

This Criminal Appeal has been filed against the judgment of conviction and sentence, dated 28.06.2022, passed by the learned Principal Special Judge, Principal Special Court under EC & NDPS Act, Chennai, in C.C.No.39 of 2014.

2. The case of the prosecution is that, on 22.12.2013, Mr.Sathish Kumar (P.W.8) received an information from M/s.Aramex India Private Limited, Ekkaduthangal, Chennai, that there were two consignments booked in respect of the same address in Malaysia, one in the name of Mr.Suresh, another in the name of one Mohammed Bin Hakim, both being booked by two different persons. The said information was reduced into writing by P.W.1/The Intelligence Officer, NCB, Chennai Zonal Unit, and after duly informing the superior officials, P.W.1, on being directed to take necessary action, reached the office of the informant, namely, M/s.Aramex India Private Limited, at around 01.30 p.m., and in the presence of independent witnesses, examined the parcels and he found concealed inside the heel of the shoes, white colour crystal powder duly packed, and upon testing the same with the Drug Detection Kit, it answered positive for Amphetamine. The first parcel weighed 38 grams. After drawing two samples of 5 grams each, the remaining 28 grams of the white colour crystal powder was sealed with NCB Seal No.11 and marked as P1.

3. Thereafter, P.W.1 proceeded to examine the second parcel, and in a similar manner, recovered white colour crystal powder from the cavity of the sole of both the shoes, weighing 44 grams, and again taking out two samples of 5 grams each and marking it as S1 and S2, the balance was sealed with NCB Seal No.11 and marked as P1.

4. In respect of both the parcels, the incriminating materials such as Airways Bills, Invoices and Visa in the name of the appellant/accused and the copy of the Driving Licence in the name of one Sabifullah, S/o.Shawkkath Ali, No.6, Pallivasal Kadu First Street, Eluppur, Kulathur, Jayankondam, Perambalur, were also seized. Thereafter, a LOC, dated 22.12.2013, in respect of the appellant/accused was issued to the Bureau of Immigration in New Delhi on the basis of the seized copy of the Visa. On the basis of the information, on 09.01.2014, the appellant/accused was detained by the Bureau of Immigration, Bengaluru. Thereupon, summons under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act” for brevity) was issued to the appellant/accused and he is said to have given voluntary statement, admitting the conscious possession and booking of the above said parcels. Upon issue of summons and examination of the said Sabifulla, he had given a statement that he had only booked consignments of wedding invitation, earlier in the year 2013, and at that time, he had handed over the photocopy of his Driving Licence. After further investigation in this case, it was concluded that the appellant/accused somehow got the copy of the said Driving Licence and misused the same for booking the first consignment. P.W.12 completed the investigation and filed a complaint before the Special Court/Principal Special Judge under EC & NDPS Act, Chennai, which was taken on file as C.C.No.39 of 2014.

5. Thereupon, on the basis of the materials on record, the trial Court framed four charges under Section 8(c) r/w. 22(c) of the NDPS Act, Section 8(c) r/w. 23(c) of the NDPS Act, Section 8(c) r/w. 28 of the NDPS Act and Section 8(c) r/w. 29 of the NDPS Act. The accused denied the charges and stood trial. So as to bring home the charges, P.W.1 to P.W.12 were examined on the side of the prosecution and Exs.P1 to P81 were marked. The prosecution also produced M.O.s.1 to 10. Upon being questioned about the material evidence and incriminating circumstances on record, the accused denied the same as “false”. Thereafter, no evidence was let in on the side of the defence.

6. The trial Court, therefore, proceeded to hear the learned Special Public Prosecutor on behalf of the prosecution and the learned counsel for the accused, and by a judgment, dated 28.06.2022, while acquitting the accused for the offences under Section 8(c) r/w.23(c) of the NDPS Act and Section 8(c) r/w.29 of the NDPS Act, found the accused guilty for the offences under Sections 8(c) r/w.22(c) of the NDPS Act, i.e., for the conscious possession of the contraband, and for the offence under Section 8(c) r/w.28 of the NDPS Act, i.e., for attempting to export the same to Malaysia, and imposed a Rigorous Imprisonment of 12 years and a fine of Rs.1,25,000/-, and in default of payment of fine, to undergo six months Simple Imprisonment, in respect of both the offences. It was also ordered that the sentences should run concurrently and the period of remand already undergone was ordered to be set off under Section 428 of the Criminal Procedure Code.

7. Aggrieved by the same, the present appeal is filed before this Court.

8. Heard Mr.R.C.Paul Kanagaraj, learned counsel for the appellant/accused and Mr.N.P.Kumar, learned Special Public Prosecutor appearing on behalf of the prosecution.

9. Mr.R.C.Paul Kanagaraj, learned counsel appearing on behalf of the appellant/accused, primarily concentrated and made his submissions in respect of the alleged seizure and in respect of the first consignment of the contraband weighing 38 grams. He would submit that, firstly, in this case, the incriminating statement of the accused under Section 67 of the NDPS Act is relied upon by the prosecution. Even under the said statement, the accused is said to have admitted that he had knowledge that he was booking a consignment containing the contraband, “Amphetamine”, however, on analysis, it turned out that the contraband was “Methampethamine Hydrochloride”. That itself would show that there is a doubt about his personal knowledge about the contraband. Be that as it may, now, the entire statement cannot be relied upon, in view of the judgment of the Constitution Bench of the Hon’ble Supreme Court of India in the case of Tofan Singh v. The State of Tamil Nadu [2021 (1) 4 SCC 1]. Therefore, apart from the statement, even as per the case of the prosecution, it is only one Sabifulla, who booked the first consignment. It is the case of the prosecution that the said Sabifulla never booked the consignment. The best evidence available with the prosecution is to examine the said Sabifulla. Even though his statement was recorded and marked, now, by virtue of the decision of the Hon’ble Supreme Court of India in Tofan Singh-s case (supra), the said statement cannot be an evidence. Therefore, in the absence of examination of the said Sabifulla, his statement cannot be relied. That leaves the prosecution with the solitary evidence of one Abdul Kadhar, who is examined as P.W.10. He would submit that the said Abdul Kadhar, even in his chief-examination, did not make any specific imputation as against the appellant/accused. However, his evidence is to the effect that, four persons came to him when he was on duty at the respective Courier Office Branch and booked the consignment. He did not specifically say that the appellant/accused was the only person, who booked the consignment, of the four persons who came to his office. Even in his cross-examination, he has admitted that, only upon verification of the Identity Proof, which is given by the person booking the consignment, a consignment is booked. Admittedly, the Identity Proof is only that of Sabifulla and not that of the appellant/accused. When the Investigating Officer was questioned about the other three persons, there was no specific answer, and as a matter of fact, he denied any knowledge about the other three persons. Therefore, the case of the prosecution in respect of the first consignment is absolutely without any basis and the prosecution has not even discharged its onus to establish the foundational fact that it is only the appellant/accused herein, who booked the said consignment. Therefore, he would submit that the benefit of doubt has to be given to the appellant/accused in respect of the first consignment.

10. The learned counsel for the appellant/accused would further submit that, once it is proved that the appellant/accused cannot be connected to the first consignment, then, what is left is only the second consignment, which was booked in the name of the appellant/accused. Even though the appellant/accused pleads innocence, he would submit that, only considering the period of imprisonment undergone by the appellant/accused, without pressing the other arguments on merits, he is pressing the argument, which relates to the quantum of sentence alone. He would submit that, if the quantity of the contraband seized is only 44 grams in respect of the second consignment, i.e., less than 50 grams, which is the commercial quantity, then, the maximum punishment is only up to 10 years. The accused is in prison from 10.01.2014 onwards. Now, 8 years and 7 months have gone by, so far. He would submit that the accused is a Malaysian National. There is nobody else to help him in India. Due to his financial position and in the efflux of time, the appellant/accused is unable to pay the fine amount. Under these circumstances, the learned Counsel, relying upon the pronouncements of this Court in similar cases in S.Edmand and Anr. v. State rep. By the Intelligence Officer, N.C.B, South Zonal Unit, Chennai (NCB F.No.48/1/08/2006-NCBMDS) [Crl.A.Nos.161 and 281 of 2014], N.Kandeepan and Anr. Vs. State rep. By the Intelligence Officer, N.C.B, South Zone, Chennai [Crl.A.Nos.528 of 2013 and 552 of 2012], T.Udayachandran @ Ramesh Vs. State rep. by the Intelligence Officer [CDJ 2012 MHC 1209], V.Vettichelvan Vs. Central rep. By the Senior Intelligence Officer, Directorate of Revenue Intelligence [CDJ 2009 MHC 5356], Rajapandi and Anr. Vs. State rep. By the Inspector of Police, Chennai (Crime No.91/12) [CDJ 2021 MHC 5821], Shahejadkhan Mahebubkhan Pathan Vs. State of Gujarat [AIR 2013 SC (Criminal) 61] and also the latest pronouncement of the Hon’ble Supreme Court in Dayalu Kashyap Vs. The State of Chhattisgarh [2022 LiveLaw (SC) 100], would pray that this Court may kindly consider imposing sentence already undergone by the appellant as substantive sentence.

11. Per contra, Mr.N.P.Kumar, learned Special Public Prosecutor appearing on behalf of the prosecution, would submit that, in this case, it is true that, subsequently, in view of the judgment in Tofan Singh-s case (supra), the statement of Sabifulla, as well as the statement of the appellant/accused, cannot be relied upon by the prosecution. However, he would submit that, P.W.10, namely, Abdul Kadhar, has given categorical evidence that, even in respect of the first consignment, it was only booked by the appellant/accused. In this case, it is the story of the appellant/accused regarding other persons. Whether the other person named Muji is existent or not, is in doubt. Therefore, when the appellant/accused has only booked the consignment, he has been rightly prosecuted by the prosecution. P.W.10 has identified the appellant/accused, not only before the Investigating Officer, but also in the Court. He has given a statement identifying the person. He has also clearly identified that Sabifulla did not come and book the consignment. Both the said identification proceedings, which were duly carried on, were also marked as Exs.P66 to P70 before the trial Court. The evidence of P.W.10 is further corroborated by a circumstance, which is a very strong circumstance, i.e., both the consignments are sent to the same address, even though booked in the name of two different consignees. Therefore, the evidence of P.W.10 corroborates with this circumstance. The prosecution has discharged its initial onus that it is only the appellant/accused, who has booked both the consignments. It is, thereafter, the burden of the appellant/accused to rebut the presumption and prove his innocence. The defence has not done anything in this case further. Therefore, he would submit that the trial Court has rightly convicted the appellant/accused. The contraband being the commercial quantity and considering the nature of the contraband, the trial Court has imposed the punishment and therefore, he would pray that this Court should dismiss the appeal and confirm the conviction and sentence imposed by the trial Court.

12. I have considered the submissions made by both sides and perused the material records of this case.

13. After listening to the arguments on both sides, the question to be determined by this Court is, whether, the prosecution has discharged its initial onus of connecting the appellant/accused in respect of the first consignment, so as to prove the conscious possession and attempt of the accused to transport 38 grams of the contraband, which is seized in the first consignment. Admittedly, it is booked in the name of one Sabifullah. Even though the statement of Sabifullah alone was marked, subsequently, by virtue of the judgment of the Constitution Bench of the Hon’ble Supreme Court of India in Tofan Singh-s case (supra), the NCB officials also having been treated as Police officials, such statement can no more have an evidentiary value. The second piece of evidence is the extra-judicial confession, which is made by the appellant/accused, which also loses its value, pursuant to the aforesaid judgment of the Constitution Bench of the Hon’ble Supreme Court of India.

14. Therefore, now, there are only two pieces of evidence before this Court. First is the oral testimony of P.W.10, namely, Abdul Kadhar and second is the incriminating circumstance, i.e., consignment being sent to the same address. As far as the first piece of evidence is concerned, as rightly pointed out by the learned counsel for the appellant, even though, it is the evidence of P.W.10 in his chief-examination that four persons came, it is not his evidence that, of the four persons, it is only the appellant/accused who booked the consignment. It is necessary to reproduce the evidence of P.W.10, which reads as follows :

“TAMIL”

Even though, in his further evidence, he has stated that the accused is one among the four persons and identifies him, even in his chief-examination, he did not categorically say that it is the appellant/accused, who booked the consignment, when it is his evidence that four persons came and booked the consignment. Further, in his cross-examination, he answered as follows :

“TAMIL”

Therefore, when he answered that he verified the Identity Proof of the person, who booked the consignment, in the cross-examination, and at the same stretch, in the chief-examination, he answers that he saw Sabifullah and he confirmed that he is not the person who came to the office and booked the consignment, his evidence is inherently redundant and clearly contradictory in respect of the material portion. Therefore, his evidence is totally unbelievable and unreliable.

15. Therefore, now the only piece of evidence which connects the appellant/accused is the consignment address. There also, it can be seen that the consignees are two different persons. When the cross-examination of P.W.1 was recorded by the trial Court in the question and answer format, it is seen that, in this regard, the evidence of P.W.12 (Investigating Officer) is as follows :

Q- Is it true that none of the officers including me enquired Suresh, Ramesh, Obi and Muji ?

A- Yes. We did not enquire them.”

In the cross-examination of P.W.1, P.W.1 has answered as follows :

Question - Even before the arrest of this accused our department officials enquired John Irudayaraj, Sundari, Abdul Khadar and Ganapathy of S.T.Courier and Sarvesh associates ?

Answer – Yes”

Therefore, under such circumstances, when Sabifullah not being immediately summoned or apprehended and only after the arrest of the appellant/accused, upon receipt of the information from the Bureau of Immigration, Bengaluru, the said Sabifullah being summoned and his statement being recorded, all put together, throws a serious doubt on the case of the prosecution as to the connection of the appellant/accused with that of the first consignment. Therefore, I hold that the prosecution in this case has failed to discharge its initial onus of establishing the foundational facts in respect of the conscious possession and transport of 38 grams of the contraband in the first consignment.

16. It is pertinent to see that, even P.W.1, the Seizing Officer, has all along treated both the transactions as separate. Even both the samples taken are numbered as S1 and S2 in respect of each of the consignment and continuous numbers of S3 and S4 is not given. Even the contraband, which was sealed, was termed as P1 in both the cases and not as P2. Similarly, a cumulative reading of the entire evidence of P.W.1/Seizing Officer and P.W.12/Investigating Officer would show that, both the consignments, though being simultaneously investigated, have been treated separately under different file numbers and RR numbers. Therefore, a tinge of doubt is there from the stage of investigation itself. In respect of the second consignment, the Visa of the appellant/accused is categorical and clearly corroborates the case of the prosecution that he is the consignor. The evidence of P.W.1 is clear and categorical and it is only the appellant/accused who booked the parcel. The contraband is duly produced and the scientific report proves that it is a contraband. Therefore, I find that the accused is guilty of conscious possession and attempt to transport 44 grams of the contraband.

17. In view of the above finding that the accused was found to be in possession and was attempting to transport 44 grams of the contraband, being less than the commercial quantity, as per Entry 159 of the Schedule to the NDPS Act, wherein, it is stated that, up to 2 grams is “small quantity” and between 2 and 50 grams is “in-between quantity”, I find the accused guilty for the offences under Section 8(c) r/w.22(b) of the NDPS Act and similarly, unde

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r Section 8(c) r/w.28 of the NDPS Act. 18. Now, coming to the question of sentence, the accused was just 18 years and 6 months at the time of occurrence. The accused has so far undergone 8 years 7 months and 22 days of imprisonment. Therefore, the said period undergone is imposed as the substantive punishment in respect of both the offences. Since the accused has pleaded and established his inability to pay the fine amount, the accused shall undergo Simple Imprisonment for a period of one month each in respect of both the offences as the default sentence for non-payment of fine. The said default sentence shall be undergone consecutively one after the other, from today. 19. In view thereof, this Criminal Appeal is partly allowed on the following terms : i. the conviction of the appellant/accused for the offence under Section 8(c) r/w.22(c) of the NDPS Act is modified and the appellant/accused is found guilty and convicted under Section 8(c) r/w. 22(b) of the NDPS Act. The conviction of the appellant/accused qua Section 8(c) r/w.28 of the NDPS Act, stands confirmed. ii. The substantive sentence of imprisonment alone is modified to the period already undergone, in respect of both the offences. Fine imposed on the appellant/accused for both the offences, stand confirmed. Iii. The default sentence for non-payment of fine is modified to Simple Imprisonment for one month for each of the offence and the appellant/accused shall undergo Simple Imprisonment for a period of one month each in respect of both the offences as the default sentence for non-payment of fine. The said default sentences shall be undergone consecutively one after the other, from today. iv. After undergoing the default sentences, the Superintendent of Prison, Central Prison, Puzhal, Chennai, may deal with the appellant/accused in accordance with law, as he is a foreigner, i.e., Malaysian National (He was having a valid Visa at the time of arrest). v. Connected Crl.M.P.No.9362 of 2022 is closed.
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