BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
THE HONOURABLE MR. JUSTICE T.MATHIVANAN
Criminal Appeal (MD) No.361 of 2008
Criminal Appeal (MD) No.240 of 2009
Criminal Appeal (MD) No.249 of 2009
alias Rawzdeen .. Appellant in Crl.A.No.361/2008
Abdul Pari .. Appellant in Crl.A.No.240/2009 B.Ashok Fernando .. Appellant in Crl.A.No.249/2009
State represented by
The Intelligence Officer,
Narcotics Control Bureau,
South Zonal Unit,
Chennai - 90. .. Respondents in all the appeals
Prayer in Crl.A.No.66 of 2008
Appeal filed under Section 374(2) of
Criminal Procedure Code for setting aside the judgment dated 09.06.2008 and made in C.C.No.128 of 2005, on the file of the learned Special District and Sessions Judge (NDPS Act Cases), Madurai.
!For appellant ... M/s.S.Manoharan
^For appellant ... M/s.M.S.Peter
For appellant ... M/s.T.K.Sampath
For respondents ... Mr.C.Arulvadivel alias Sekar,
in all the appeals Special Public Prosecutor for NCB cases
These three memorandum of criminal appeals are directed against the judgment dated 09.06.2008 and made in C.C.No.128 of 2005 finding the third accused who is the appellant in Crl.A.No.361 of 2008 guilty under Sections 8(c) r/w. 29, 8(c) r/w. 28 and 23(c), 8(c) r/w.27(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) convicting thereunder and sentencing to suffer ten years of Rigorous Imprisonment and to pay a fine of Rs.1,00,000/- for each offences (3 counts) and in default, to suffer one year Rigorous Imprisonment; finding the second accused who is the appellant in Crl.A.No.240 of 2009 guilty under Sections 8(c) r/w. 29, 8(c) r/w. 21(c) and 8(c) r/w. 28 and 23(c) of the NDPS Act convicting thereunder and sentencing to suffer ten years of Rigorous Imprisonment and to pay a fine of Rs.1,00,000/- for each offences (3 counts) and in default, to suffer one year Rigorous Imprisonment and finding the first accused who is the appellant in Crl.A.No.249 of 2009 guilty under Sections 8(c) r/w. 29, 8(c) r/w. 21(c) and 8(c) r/w. 28 and 23(c) of the NDPS Act convicting thereunder and sentencing to suffer ten years of Rigorous Imprisonment and to pay a fine of Rs.1,00,000/- for each offences (3 counts) and in default, to suffer one year Rigorous Imprisonment. Being aggrieved by the impugned judgment, the accused 1,2 and 3 have approached this Court by way of these memorandum of Criminal Appeals.
2. Since these three criminal appeals have emerged out of one and the same judgment dated 09.06.2008, and made in C.C.No.128 of 2005, on the file of the learned Special District and Sessions Judge (NDPS Act Cases), Madurai, it has become necessary for this Court to club these three appeals together and to pronounce the common judgment.
3. For easy reference, the appellant in Crl.A.No.361 of 2008 herein may hereinafter be referred to as the third accused, the appellant in Crl.A.No.240 of 2009 herein may hereinafter be referred to as the second accused and the appellant in Crl.A.No.249 of 2009 herein may hereinafter be referred to as the first accused.
4. The related facts and circumstances which giving rise to the memorandum of criminal appeals may be summarised briefly as follows:-
4.1. P.Ws.9 is the Intelligence Officer attached to Narcotic Control Bureau, South Zonal Unit, Chennai. That on 04.09.2004 at about 4.00 p.m. when he was present in his office, he had received a discreet message stating that one Fathima Ruksana, who is indulging illicit drug trafficking between India and Srilanka, had come down to Chennai along with her husband Mohammed Rawzdeen. The informer had also stated that one Ashok Fernando hailing from Thoothukudi, had also been indulging drug trafficking along with the said Fathima Ruksana and through whom the narcotic drugs had been transporting to Srilanka by enshipment. The informer had further stated that they had sent one Abdul Pari of Chennai to Pune and purchased 4 kgs of Heroin through him.
4.2. The message run further that on 05.09.2004, at about 4.00 p.m., near Sri Pothi Vinayagar Temple located opposite to new bus stand at Thoothukudi, the said Abdul Pari is going to entrust the contraband with Ashok Fernando. The informer had also stated about the physical identification of the above said persons. That message was reduced into writing and subsequently, it was submitted before P.W.2, Thiru.S.Gunabalan, Superintendent. On receipt of that message, P.W.2 had ordered P.W.9 Thiru.L.S.Aruldoss, P.W.11 Murugesan and P.W.16 A.Caleb Arumairaj, Intelligence Officers to take further action and he had also instructed the said officers about the steps to be taken to prevent the above said activities. That report was marked as Ex.P5.
4.3. Thereafter, P.Ws.9, 11 and 16 had formed a team and at about 09.00 p.m. on the same day they proceeded to Thoothukudi in a Maruti car bearing Registration No.TN-07-B-1368. On 05.09.2004 they had reached Thoothukudi and in pursuant to the order of P.W.2, at about 2.30 p.m., P.W.9 had procured independent witnesses viz., P.W.12 Ramakrishnan, Sankaraperi Village Administrative Officer and one Esakkimuthu. Thereafter, they had arrived at the desired place i.e. near the Pothi Vinayagar Temple and kept strict surveillance. While so, at about 4.00 p.m., the persons as indicted by the informer had come there and the man who was wearing sandal colour shirt and brown colour pant was found in possession of one green colour bag. Thereafter, he had handed over the said green colour bag to the other fatty man.
4.4. On seeing this, P.W.9 and his team had surrounded them and after introducing themselves they came to know that the name of the persons were Ashok Fernando and Abdul Pari. The said Ashok Fernando had represented that he is residing at Thoothukudi. Subsequently, they had told them that they were going to be searched and therefore, the proviso to Section 50 of the NDPS Act was explained and further told that they were having right to be searched either in the presence of a Gazetted Officer or in the presence of a nearest Magistrate. For that, they had replied that they could be searched by P.W.9 and other officials. Therefore, P.W.9 had asked them as to whether they were having any narcotic drugs in their possession. For that, the first accused Ashok Fernando had handed over the green colour bag to P.W.9 and told that 4 kgs of Heroin was placed in the bag. Further, the first accused had told that this contraband was brought by the second accused Abdul Pari from Pune and handed over just before.
4.5. When the bag was opened by P.W.9, besides certain wearing apparels, four packets pasted with brown colour paper and wrapped with green colour cloth were found. When it was opened, brown powder was found to be placed in four polythene covers. Then samples were taken as per the provisions of NDPS Act and mahazar was also prepared in the presence of the said witnesses. Subsequently, the first and second accused were served with summons under Exs.P109 and P122 to appear before P.Ws.11 and 16 respectively at 08.30 p.m. on 05.09.2004. Then, after their appearance, the confessional statements of the accused were recorded. Subsequently, on the basis of the contraband seized as well as the confessional statements of the accused, both the accused were arrested after service of an arrest memo stating that they had committed offences under Section 8(c) r/w. Sections 21, 23, 28 and 29 of the NDPS Act. Thereafter, the first and second accused were sent to the learned Judicial Magistrate, Thoothukudi on 06.09.2004 for being remanded to judicial custody.
4.6. That on 06.09.2004, when P.W.14 Thiru.Karthikeyan, Intelligence Officer, was present in his office, had received an oral instruction through phone from P.W.2 Thiru.Gunapalan, Superintendent. In that instruction, he had stated that one Ashok Fernando was arrested for having transported the narcotic drugs weighing about 4 kgs and in his statement, he had stated that one Mohammed Rawzdeen and his wife Fathima Ruksana were having connection in that trafficking and that the said Mohammed Rawzdeen and Fathima Ruksana were staying at Room No.309 at Indian Palace Hotel at Mannadi in Chennai. Immediately, P.W.14 proceeded to the hotel and on verification of the Register, found that one person in the name of Kadhar Mohideen was staying there and that at about 5.30 a.m. he had vacated that room and gone somewhere. For that purpose, P.W,14 had submitted a report (under Ex.P75) before P.W.2.
4.7. Subsequent to that, P.W.14 had also received a telephonic message stating that the said Mohammed Rawzdeen and Fathima Ruksana were staying at present in Room No.303 in S.R.Guest House at Chennai. That message was reduced into writing and submitted before P.W.8 Assistant Director, Thiru.Raghavan. In consequent thereof, P.W.8 Raghavan had ordered P.Ws.14, 3 and 4 to proceed further. On the same day that on 06.09.2004 under the head of P.W.8 Thiru.Raghavan, P.Ws.14, 3 and 4 and one Women Sepoy TheivaRani had reached S.R.Guest House and after introducing themselves, the Hotel Manager one Manoj and the Receptionist P.W.10 were requested to be witnesses for the proceedings. Then, when they had knocked at the door of room No.303, the third accused Mohammed Rawzdeen and his wife Fathima Ruksana were found present there.
4.8. When they were interrogated the third accused had told that he was staying in the S.R.Guest House in the name of Kadar Mohideen. Then P.W.14 had apprised their rights under Section 50 of the NDPS Act and told them that there were going to be searched and that, they had every right to represent that they could be searched either in the presence of a Gazetted Officer or in the presence of a nearest Magistrate. For that, they had told that they could be searched by the officers themselves. Then, they were searched and certain documents were seized from them apart from Indian money of Rs.500/- from the third accused. Then both of them were arrested and entrusted with P.W.15 Thiru. Thirumalaisridhar, Control Manager, at about 8.00 p.m. on the same day for being produced before the learned Judicial Magistrate. P.W.15 had also produced them before the IX Metropolitan Magistrate at about 10.45 p.m. and subsequent to that they were remanded to judicial custody. The contraband and samples were produced before the Court for being sent to chemical examination.
4.9. Thereafter, on 13.09.2004, P.W.16 Thiru.Caleb Arumairaj, Intelligence Officer had taken up this case for further investigation. After the completion of his investigation, he had filed a complaint before the learned Special District and Sessions Judge (NDPS Act Cases) at Madurai under Section 8(c) r/w. Sections 21(c), 23(c), 27A, 28, 29 of the NDPS Act, 1985 as amended in 2001.
4.10. After taking cognizance of the offence, the learned Special District and Sessions Judge for NDPS Act cases had framed necessary charges against the accused 1 to 4. When the ingredients of the charges were explained and questioned, they had pleaded innocent and claimed to be tried. Therefore, they were put on trial. During the pendency of the trial, the fourth accused Fathima Ruksana viz., the wife of the third accused Mohammed Rowzdeen had absconded. In order to prove its case, the prosecution had examined as nearly as 16 witnesses and during the course of their examination Exs.P1 to P129 and M.Os.1 to 18 were marked.
4.11. On appreciation of the related materials and other evidences, the trial Court had found the accused guilty and sentenced as detailed above.
4.12. Being aggrieved by the impugned judgment, the accused 1 to 3 have approached this Court by way of these memorandum of Criminal Appeals.
5. When the appeals came up for hearing, the learned counsel appearing for the accused 1 to 3 has urged before this Court that he does not want to go into the question of facts instead he wants to confine his arguments only on the quantum of sentence. Therefore, the facts of the case need not be narrated in detail.
6. The learned counsel, while advancing his arguments, has submitted that insofar as this case is concerned, the quality of contraband has not been analysed and that the analysation of quantity is essential part of investigation so as to prove the guilt of the accused beyond all reasonable doubt. In this regard, he has drawn the attention of this Court to the Standing Order of the Central Government with regard to expeditious test of contraband. In which, it has been stated as follows:
"Expeditious analysis of narcotic drugs and psychotropic substances is of essence to all proceedings under NDPS Act, 1985. In many cases the court may refuse to extend Police/Judicial remand beyond 15 days in the absence of a chemical report. Accordingly, it is essential that the analysis is completed and the report is despatched within 15 days from the date of receipt of the sample. However, where quantitative analysis requires longer time, the results of the qualitative test should be despatched to the officer from whom the samples were received within the aforesaid time limit on the original copy of the Test Memo so that court proceedings can start immediately. In the next 15 days the results of quantitative test (purity of the drug) should also be indicated on the duplicate test memo and sent to the officer from whom the samples were received."
7. The learned counsel has also drawn this Court's attention to the evidences given by P.W.1 Chemical Analyst. In his cross-examination, P.W.1 has admitted that the quality of the contraband has not been analysed whereas, the nature of the contraband alone was analysed. He has also admitted that in Ex.P4 Analytical Report, he had not stated about the quality of the samples. It is also apparent from Ex.P4 Analytical Report that the percentage of the diacetyle -morphine (Heroin) has not been mentioned against all the four samples viz., S1, S3, S5 and S7.
8. In this connection, the learned counsel appearing for the accused has placed reliance upon the decision reported in State of NCT of Delhi v. Ashif Khan reported in 2000 (3) SCALE 429. In this case, the accused as convicted under Section 21(a) and (b) of the NDPS Act. The quantity of substance recovered from the accused was 310 gms, which was prima facie detected to be Heroin. Two samples of five grams were taken and those were sent for Forensic Sciences Laboratory for testing. After testing the said samples the Laboratory gave a report on 05.02.2004. The report revealed that samples were found to contain 0.95% of diacetyle-morphine. In view of the percentage contained the weight of Heroin came to be 2.945 gms. of Heroin. It was observed by the High Court that in a mixture of a narcotic drug or a psychotropic substance with one or more neutral substance the quantity of the neutral substance or substances is not to be taken while considering whether small quantity or a commercial quantity of the narcotic drug or psychotropic substance is recovered but only the actual contents by weight of the narcotic drug or psychotropic substance as the case may be relevant for determining whether it would constitute a small quantity or commercial quantity. Therefore, the appeal was dismissed by upholding the conclusion of the trial Court stating that the conviction under Section 21(a) is proper.
9. Further, the learned counsel has also placed reliance upon the decision reported in E.Micheal Raj v. Intelligence Officer, Narcotic Control Bureau, (2008) 5 SCC 161. In this case, the total quantity of contraband seized from the appellant was 4.07 kg. Since the purity of Heroin was 1.4% and 1.6% respectively in two samples, therefore, the quantity of Heroin in possession is only about 60 grams (1.4+1.6)/2=1.5% of 4.07 kg = 60 grams. Thus, the total quantity of Heroin seized is below 250 gms. i.e. below the commercial quantity. It was submitted in that case that it was not the total weight of the substance allegedly recovered that is material, but the percentage content of Heroin translated into weight that is relevant. Ultimately, the Hon'ble Apex Court has held that on considering the evidence on record the High Court's judgment cannot be in any event deficient. However, considering the role ascribed to the appellants and the nature of injuries caused while upholding the conviction, sentenced is reduced to the period already undergone which is stated to be of substantial part of the sentence imposed.
10. The learned counsel appearing for the accused has also submitted that as per the amended Act, the quantity of the contraband has been divided into three categories:
(i) Commercial quantity
(ii) Intermediary quantity
(iii) Small quantity.
In this connection, he would submit that the punishment of imprisonment and fine is compulsory only in respect of commercial quantity. As revealed from E.Micheal Raj's case, as per the Central Government notification dealing with Heroin small quantity is mentioned as five grams and commercial quantity as 250 grams. Further, it reveals that the punishment would vary depending upon whether quantity of offending material is small quantity, commercial quantity or something in between. It is also held in the above cited case that the intention of legislature was to levy punishment based on content of the offending drug in the mixture and not on the weight of the mixture as such. Hence, it is not the total weight of substance recovered that is material, but the percentage content of narcotic drug translated into weight that is relevant.
11. The learned counsel has also placed reliance upon the decision of the Hon'ble Apex Court in Union of India v. Bal Mukund and Others (2009 (2) Crimes 171(SC). In this case, it is held that since the samples were not collected in accordance with Section 55 of the NDPS Act and r/w Standing Instruction No.1/88 the entire proceedings vitiated. On coming to the instant case on hand, it is also obvious to note here that the prosecuting agency has not strictly followed the proviso to Section 55 and the standing instruction No.1/88 when the samples were collected. Ex.P4 Analytical Report would go to substantiate this fact.
12. The learned counsel appearing for the second accused has adopted the arguments advanced on behalf of the first accused.
13. The learned counsel appearing for the third accused would submit that insofar as the third accused is concerned, the penal provision under Section 27(A) would not attract as there was no question of financing for the crime. Further, he would submit that the confession alleged to have been given by the co-accused would not in any way connect the third accused. He would submit further that already the third accused had undergone nearly about six years and therefore, the period of sentence so far undergone by him would be sufficient to meet the ends of justice.
14. He has also placed reliance upon the decision reported in R.Mayilvahanam and another v. Intelligence Officer, Narcotics Control Bureau, South Zone, Chennai and others (2008 Cri. L.J.4425). In this case, it is held that the Assistant Chemical Examiner's evidence does not indicate the actual percentage of the purity of drug Heroin and, as no confirmatory test was also conducted, it could not be known as to what was the proportion of the drug Heroin that was present in the sample packets. This defect in the prosecution case is a vital one as it has bearing on the proportion sentence to be passed depending upon the quantity of Heroin being small, intermediate or commercial. Though the learned Trial Judge has referred to the said contention put forward by the defence counsel before the trial Court in the course of hearing the accused on the sentence issue, the trial Court has dismissed the said contention as wholly irrelevant. It is also held that the reasoning of the trial Court cannot be sustained in law particularly in the face of the amended provision which has given graded punishment depending upon the quantity of the narcotic drug seized.
15. As admitted by P.W.1 Chemical Examiner, the actual percentage of diacetyle-morphine in Ex.P4 has not been mentioned against these samples. Hence, it is clear that both the evidences of P.W.1 and Ex.P4 Analytical Report did not indicate the actual percentage of purity of the drug Heroin and has no confirmatory test was also conducted. It is not known as to what was the proportion of the drug Heroin that was present in the sample packets. As held in the above cited decision, this defect in the prosecution case is vital one as it has bearing proportionate sentence to be passed depending upon the quantity of the Heroin intermediary or commercial.
16. As observed in the foregoing paragraphs, the quality of the contraband has not been properly tested and the percentage of the diacetyl-morphine has not been specifically ascertained and mentioned in Ex.P4 Analytical Report. Therefore, it cannot be stated that the accused 1 to 3 have committed offence under Section 8C r/w. 21(c), 8(c) r/w. 28 and 23(c). But their act can be brought under Section 8(c) r/w. 21(b) as well as 8(c) r/w. 28 and 23(b). On coming to the third accused, there is no satisfactory evidence to show that he had rendered financial assistance for the illicit trafficking of contraband and harbouring of offenders. Therefore, this Court is of firm view that the offence under Section 8(c) r/w. 27A would not be attracted as against the third accused.
17. The first and second accused were arrested on 05.09.2004 and remanded to judicial custody on 06.09.2004 and the third accused was also remanded to judicial custody on 06.09.2004. All the three accused have so far undergone five years and seven months of incarceration. Having taken into consideration of the submissions of both sides, this Court has thought it fit that the period of incarceration i.e. five years and seven months so far undergone by the three accused would be sufficient to meet the ends of justice.
17. In the result, the appeals are allowed in part. The finding of the trial court is modified as detailed below:
(1) The first accused is found guilty under Section 8(c) r/w. 29, 8(c) r/w. 21(b) instead 21(c) and 8(c) r/w. 28 and 23(b) instead 23(c) of NDPS Act. (2) The Second accused is found guilty under Section 8(c) r/w. 29, 8(c) r/w. 21(b) instead 21(c) and 8(c) r/w. 28 and 23(b) instead 23(c) of NDPS Act.
(3) The third accused is found guilty under Section 8(c) r/w. 29, 8(c) r/w. 28 and 23(b) instead 23(c) of NDPS Act. He is not found guilty under Section 8(c) read with 27A and he is acquitted of the charge under Section 8(c) read with 27A of NDPS Act.
The first accused is sentenced to suffer five years and seven months of rigorous imprisonment and to pay a fine of Rs.50,000/- for each offences under Section 8(c) r/w. 29, 8(c) r/w. 21(b) and 8(c) r/w. 28 and 23(b), in default, to suffer three months of Rigorous Imprisonment for each offences.
The second accused is sentenced to suffer five years and seven months of rigorous imprisonment and to pay a fine of Rs.50,000/- each for the offences under Section 8(c) r/w. 29, 8(c) r/w. 21(b) and 8(c) r/w. 28 and 23(b) in default, to suffer three months of Rigorous Imprisonment for each offences.
The third accused is sentenced to suffer five years and seven months of rigorous imprisonment and to pay a fine of Rs.50,000/- each for the offences under Section 8(c) r/w. 29 and 8(c) r/w. 28 and 23(b), in default, to suffer three months of Rigorous Imprisonment for each offences.
It is represented that the fine amount imposed by the Trial Court has not been paid by the appellants. In the event of payment of the reduced fine amount of Rs.50,000/- for each offences, the accused shall be immediately released from the prison if their presence in the prison does not require in connection with any other case.
The Special District and Sessions Court,
(NDPS Act Cases),Madurai.