THE HONOURABLE MR v. M.Shaik Mohammad2.NMurugan3.Kattin Durai4.Rajeshyam Sharma @ More Sharma5.Satish Ramlal @ Srikant Vajpayee @

conspiracy to do or cause to be done illegal acts viz., purchase,possess, conceal, import and export inter-state for the purpose ofselling in India and for exporting out of India narcotic drug viz.,heroin weighing totally 3.500 kgs. A1 to A6 have committed anoffence punishable under Section 29 r/w 21 of the Act. Inpursuance of the said conspiracy and in the course of the saidtransaction A4 procured the said 3.5 kgs of heroin and transportedthe same to Madras from Mandsaur during the last week of September1995 along with A5 and A6 and therey A4, A5 & A6 have committed anoffence punishable under Section 21 of the Act. In pursuance of thesaid conspiracy and in the course of the same transaction A2received the said 3.5 kgs of heroin from A4 and handed it over toA1 during the last week of September, 1995 at Madras who in turnhanded over 2 kgs of heroin to A3 to be kept in safe custody. Inpursuance of the said conspiracry and in the course of the sametransaction A1 was found in possession of 1.500 kgs of heroin on01.10.1995 and thereby committed an offence punishable underSection 21 of the Act. In pursuance of the said conspiracy and inthe course of the same transaction A2 and A3 were found inpossession of 2 kgs of heroin on 01.10.1995 and thereby committedan offence punishable under Section Section 21 of the Act. Hence,the complaint.2(d) On appearance and production of the accused, copieswere furnished to the accused by the trial Court under Section 207of Cr.P.C. When charges under Section 8(c) r/w 21 and 29 of theAct were framed against A1 to A6 and readover to A1 to A3 invernacular language and A4 to A6 in Hindi through a translator, allthese accused denied their complicity with the crime. 3. On the side of the prosecution P.W.1 to 9 were examined,Ex.P.1 to Ex.P.17 and M.O.1 to M.O.18 were marked. On the side ofthe accused D.W.1 was examined and Ex.D.1-Nominal Register of theCentral Prison Hospital, was marked. Summons to D.W.1 issued byCourt was marked as Ex.C.1. 4.4(i) P.W.1-Vijayalakshmi, who is working as anIntelligence Officer in NCB, South Zone Region, in her evidence hasstated that she is one of the Officers who gathered intelligenceabout the trafficking of narcotic drugs. On 30.09.1995 she alongwith two more officers filed an intelligence report at 9.00 pm tothe Assistant Director who gave Direction. On 01.10.1995 herself(P.W.1) and the Assistant Director went to Door No.57, LebbiStreet, Chennai, along with two independent witnesses. Ex.P.1 isthe intelligence report. On the basis of the intelligence report-Ex.P.1 they went to the above said house with two independentwitnesses viz. Gurusamy and K.Sunilkumar, and found in the houseone Sheik Mohamed(A1) along with his wife Sulthan Beebee, and twochildren and some other persons residing their. After showing the https://hcservices.ecourts.gov.in/hcservices/ identity card to them the above said officers informed them thatthey are going to conduct a search in the said house as per theprovisions contemplated under the NDPS Act. 4(ii) When questioned as per the right conferred to themunder the Act, as to whether they prefer to be searched before theJudicial Magistrate or before a Gazetted Officer, A1 replied thatit is not necessary to take him before the Judicial Magistrate. Atthat time Mr.Krishnamurthy (P.W.9), a Gazetted Officer, who isabove the rank of Assistant Director of NCB, was present and A1said that the search can be conducted in P.W.9's presence itself.As a result of search, from an unused kitchen in the second floor acloth bag was found. Inside the cloth bag two packets one smalland one big were found. The packets were pasted with adhesivetapes. When the tapes were removed, there were two polythenecovers placed one inside the other, were found. Two more polythenecovers were found kept inside. They found inside the presence ofbrown powder. On enquiry A1 said that it was heroin, a narcoticdrug. From both the bags small portion of brown powder wereseparately taken and tested with the help of test kit. The testanswered for the presence of heroin. Bulk packet weighedapproximately 1 kg and small bag weighed 500 grams. Inside theouter cloth the name 'Rolex Hotel' was found inscribed. The cardmarked as Ex.P.2 was also found there. On the backside of Ex.P.2,the name Rajesh Shyam Sharma was written both in English and Hindiand also Room No.206 & 207 were found written therein. RajeshShyam Sharma is the fourth accused in this case. When thecontrabands were seized P.W.1 got the signature of A1 and twoindependent witnesses, besides she herself being signed thereinwith date. The samples are each weighing approximately 5 gramswere taken from the packets and all the four samples were put infour small polythene covers and again they were put in four papercovers, pasted, sealed with NCB seal marked as S1 to S4, they areM.O.1 to M.O.4. P.W.1 has also taken signature of A1 and two morewitnesses besides she also being signed on the same. 4(iii) After taking samples, balance of quantity of brownpowder along with polythene cover were put in two big paper coverspasted sealed and marked as P1 and P2 respectively, they are M.O.5& 6, wherein also P.W.1, two independent witnesses besides A1signed. The brown powder found in M.O.1 is M.O.7. M.O.8 is thebrown powder found in Ex.B.2. All the other packing materials wereput in a paper cover and pasted, sealed and marked as M.O.9. Allthese thing were found in a cloth bag written in tamil as "AyuthaPooja Vizha". These are all placed inside in P.3 by P.W.1, whichis marked as M.O.9. The mahazar was prepared for the seizure ofthe contrabands in the presence of witnesses and the formalitieswere completed on 8.30 am. In mahazar also A1 and two independentwitnesses have signed with date. P.W.1 has also signed in it. TheAssistant Director of NCB also signed in it. The seal which wasaffixed in all the packages was affixed with fascimile of the seal. https://hcservices.ecourts.gov.in/hcservices/ Then a copy of the mahazar was given to A1 and A1 has given anacknowledgment. The mahazar is Ex.P.3. 4(iv) The seized properties were deposited with aforwarding memo in the godown of NCB Office. Forwarding memo isEx.P.4 and the receipt is Ex.P.5. A report under Section 57 of theAct was submitted by P.W.1, which is marked as Ex.P.6. The saidreport was sent to Assistant Director Mr.s.Krishnamurthy as perSection 57 of the Act.5. 5(i) P.W.2-Shanmugam, Intelligence Officer of NCB,Chennai, would state that before and after 01.10.1995 he wasworking as an Intelligence Officer of NCB. On 30.09.1995 at about8.30 pm while he was working in the office his Assistant DirectorThiru.Krishnamurthy has informed him that as per intelligencereport near Egmore area about 3.00 kgs of heroin was concealedand a portion of it was kept in Door No.4, Longs garden, Pudupet,in a STD Booth by name 'Kavitha Telecom'. At that time it was10.30 pm and the said STD Booth was found to be locked and whenthis fact was informed to his Assistant Director through wireless,who had asked him to stay in the same place to conduct surveillanceand as per his direction he (P.W.2) spent the night there itselfand on the following morning i.e., on 1.10.1995 at about 8.15 am,A2 and A3 came there with an yellow colour polythene bag and theyopened the door of the STD Booth with a key and that he conveyedthe said information to the Assistant Director. 5(ii) The Assistant Director has also informed P.W.2 tobe ready to conduct a search in the STD Booth and for the saidpurpose he has requested him to arrange two government witnesses.When he approached the nearby residents requesting them to be awitness for search to be conducted in the said STD Booth, theyrefused. Immediately he contacted his Assistant Director andinformed about his inability to secure two witnesses. AssistantDirector inturn informed that he is conducting a house search atPudupet in the presence of two witnesses and he will bring them tothe said STD Booth and the search can be conducted in theirpresence. The Assistant Director and the first accused along withsome officials came to STD Booth at about 8.45 am and as per theinstructions of the Assistant Director he served a summon to A1 whohad informed him that he will accompany P.W.2 to the office. 5(iii) When STD Booth was searched, they could find A2and A3 in the Booth. Ex.P.7 is the summon issued to A1 by showinghis identity card, P.W.2 informed that in the presence of twowitnesses he is going to conduct search in the said STD Booth underthe NDPS Act. When it was informed by P.W.2 to A2 & A3 if theywant they can conduct a search on the witnesses and the officialswho were present their. When the mandatory provisions underSection 50 of the Act was complied with by informing the accusedwhether they want the search to be conducted before a JudicialMagistrate or before a Gazetted Officer, A2 and A3 replied that https://hcservices.ecourts.gov.in/hcservices/ there is no necessity for it and informed P.W.2 that he (P.W.2)himself can conduct the search. Anyhow, the said search wasconducted before the Government Gazetted officer,Mr.S.S.Krishnamurthy, who was working as the Deputy Director ofNCB. In search he could find a yellow colour polythene bag in thesecond drawer of an iron table, which was identified by P.W.2 asthe son brought by A.2. When the said yellow bag was opened hecould see two big packets in it. When the said packets were openedhe could see a cloth bag which contained two polythene bags inside.P.W.2 could see brown colour powder in two polythene bags. When heenquired about this both A2 and A3 replied that it was heroin. Thefirst bag weighed 1 kg. The second bag on measuring also weighedabout 1 Kg. Two samples weighing each 5 grams were taken from theseized contraband and placed it in a paper cover and sealed thesame after assigning the mark P1 in the cover. M.O.10 is the saidcover. From the second bag also he took two samples weighing each5 grams and also has kept the same in a paper cover and sealed thesame. M.O.11 is the said bag. He has also assigned S3 and S4 tothe samples taken from the two packet. Both the accused and P.W.2have singed in the property recovered. 5(iv) He has also prepared inventory for the materialobjects seized by him, which was marked as Ex.P.3. Ex.P.3 was alsosealed with NCB seal. S1 and S2 are M.O.12 and 13. The packingmaterials are Ex.P.16 and he, two witnesses and the accused weresinged in the same. He has also enquired A2 and A3 about thesource through which they got the contraband (subject to theobjection raised by the other side). The accused have informed theCourt that both A2 and A3 along with A1 had purchased 3 ½ kgs ofheroin from A4 and both A2 and A3 had admitted that a portion ofthe heroin thus purchased was with the possession of A1 andremaining portion of the heroin is with them(A2 & A3). A2 hashandedover a visiting card of a hotel and informed that A4-Rajeshyam Sharma is residing in the said hotel. In the visitingcard the name Rolex Hotel, NSC Bose Road, Chennai-1, was written inEnglish and Hindi. A2-Murugan has informed P.W.2 that A4-RajeshyamSharma is residing at Room No.206 & 207 of the said hotel. Thevisiting card and other materials were seized under Ex.P.17-mahazar, in which both the accused and both the witnesses and P.W.2have signed. P.W.2 soon served summons to both A2 and A3. Ex.P.8is the mahazar for the contraband seized from A2 and A3. Ex.P.9 isthe summon issued to A2 and Ex.P.10 is the summon issued to A3.Both A2 and A3 have also identified A1 and informed P.W.2 that theremaining contraband is only with him. P.W2 took A1 to A3 in hiscar to his office. 5(v) P.W.2 has handedover the material objects collectedfrom the accused to the Assistant Director for safe custody in thegodown in his office. For that purpose he has prepared aforwarding memo to his Assistant Director who arrived at the officeat about 10.30 pm. After handing over the material objects along https://hcservices.ecourts.gov.in/hcservices/ with memo he recorded the confession statement of A1 at 3.00 pm andrecorded the confession statement of A2 at 4.00 pm. Since A2 is anilliterate the confession statement of A2 was recorded by A1 asnarrated by him(A2). A3 has given a voluntary statement. Ex.P.11is the confession statement of A1. Ex.P.12 is the confessionstatement of A2. Ex.P.13 is the confession statement A3.Ex.P.14 is the arrest card for A1. Ex.P.15 is the arrest card forA2. Ex.P.16 is the arrest card for A3. Ex.P.17 is the forwardingmemo given by P.W.2 for the seized articles to be kept in theoffice godown. Ex.P.18 is the receipt issued ho him in thegodown. 5(vi) He has arrested the three accused and kept in hiscustody and produced them before the Court for remand on the nextday at about 2.00 pm. A1 to A6 were taken to the JudicialMagistrate at Mugapair. But after coming to know that theMetropolitan Magistrate of Egmore himself is empowered to remandthe accused under the Act, he has produced A1 to A6 before theMetropolitan Magistrate for judicial custody. As per the orders ofthe Magistrate, he had produced the seized contraband before theSpecial Court for NDPS case, but as per the instructions of theCourt he kept those seized properties in the godown in his office.He has submitted a report to his higher official under Ex.P.20under Section 57 of the NDPS Act.6. P.W.3-Mr.Shasthri, an Intelligence officer of NCB,Chennai, an empowered officer under NDPS Act, would depose that on05.10.1995 he produced the material objects connected with thiscase before the Court, which caused to weigh the said materialobjects with the help of a balance brought by the Court staff.Thereafter, he produced the sample for chemical examination atcustoms house, Chennai, as per the directions of the Court. Hefiled an affidavit seeking custody of A4 to A6 for furtherinterrogation and after completing the interrogation he surrenderedA4 to A6 on 15.10.1995 before the Court. Ex.P.21 is the memo forsurrendering the properties in the Court. Ex.P.22 is letter ofdirection to send the samples to the customs house for analysis.Ex.P.23 is for taking custody of A4 to A6 for interrogation. Thevoluntary statement of A4 to A6 is Ex.P.24 to Ex.P.26. The abovesaid accused have given the statement in Hindi and English languageand the translation was done by P.W.3 himself since he isconversant with both Hindi and English languages. A5 and A6 havealso given correct names in Ex.P.24 to Ex.P.26. Ex.P.27 is thetest memo. The copy of charge sheet and FIR collected fromHyderabad relating to A4 are Ex.P.28 and Ex.P.29 respectively.panchanama drawn at Hyderabad is Ex.P.30, which was marked subjectto the objection. Ex.P.31 is the booking of travel tickets forA4 to A6 from Bhopal to Madras. https://hcservices.ecourts.gov.in/hcservices/

7. 7(i) P.W.4-K.N.Sridaran is the Inspector of Customs andExcise Department at Ranipet. He was working in NCB as anIntelligence Officer at Chennai from 01.11.1995 to January 1997.He is an authorised officer under NDPS Act and under Section 67 and42 of NDPS Act. He had issued summons to Mr.Samuvel Raj, ownerof the STD Booth, viz. Kavitha Telecom, No.4, Langs Garden Road,Pudupet, Chennai. The said Samuvel Raj was asked to appear on23.11.1995 at 2.00 pm to NCB Office, Chenni. Ex.P.32 is the servedMemo. 7(ii) As per the summons, the said Samuvel Rajappeared himself in the said office on 23.11.1995 at 2.30 pm. Hewas asked to explain regarding the seizure of 2 kgs of heroin fromthe above said STD Booth, (Kavitha Telecom, No.4, Langs Gardenroad, Pudupet, Chennai) on 21.10.1995. Ex.P.33 is the statement ofMr.Samuvel Raj. According to him his brother Kattin Durai(A3) wasin permissive occupation of the said STD Booth and the A1 and A2used to visit the said STD Booth often. Samuvel Raj has alsoidentified Sheik Mohammad, Murugan and Kattin Durai, in the photoshown to him by P.W.4 and he has also signed in the copy of thephoto. Ex.P.33 is the xerox copy of the photo of the personidentified as Kattin Durai and Ex.P.35 is the xerox copy of thephoto of the person identified as Murugan and Ex.P.36 is the xeroxcopy of the photo of the person identified as Sheik Mohammad bythe said Samuvel Raj. 7(iii) On 23.11.1995 P.W.4 issued summons to AzizurRahman and Narayanan Nair, who are working as receptionist andManager respectively in the Rolex Hotel at NSC Bose Road, Chennai,to appear before him on 24.11.1995 at 10.00 am. Ex.P.37 isthe summon served on Azizur Rahman and Ex.P.38 is the summon servedon Narayanan Nair. When Azizur Rahman was asked to say about thefacts known to 4 ½ grams of heroin seized on 01.10.1995 at RolexHotel, he gave a statement(Ex.P.39). He ha further disclosed thaton 29.9.1995 Room.No.206 was allotted to Rajeshyam Sharma andRoom.No.207 was allotted to Sheyam in Rolex Hotel. He has furtherdeposed to the effect that on 01.10.1995, Azizur Rahman was askedto be a witness for the seizure of the contraband in Rolex Hotel. 7(iv) He has also informed that Narayanan Nair wasalso requested by NCB to be a witness in the above said seizure.When Rejeshyam Sharma was staying in Room.No.206 of Rolex Hotel,the NCB officials interrogated him and at that time RajeshyamSharma produced from his pocket 4 ½ grams of heroin powder, wasalso stated in detail in the statement given by Azizur Rahman.Azizur Rahman has further disclosed in his statement that the nameof the person who stayed in Room No.206 is not Rakesh, but it isRajeshyam Sharma and the name of the person who stayed in RoomNo.207 was not Shyamlal, but Sathish Ramlal Ramlal. Azizur Rahmanhas also identified A4 to A6 in the xerox photo shown to him.Azizur Rahman has also produced checkin register and counterfoil ofthe receipt issued to the person who had stayed in Room.No.206 and https://hcservices.ecourts.gov.in/hcservices/

207. Ex.P.40 to 42 are the xerox photo of A4 to A6 containing thesignature of Azizur Rahman. Ex.P.43 is the xerox copy of checkinregister. Ex.P.44 and 45 are the counterfoil receipts relatingto Room No.206 and 207. 7(v) At the time of interrogation of NarayananNair, since he could not write his statement, Azizur Rahman wrotethe statement given by Narayanan Nair. Narayanan Nair alsoidentified A4 to A6 in the photos(Ex.P.47 to 49 respectively) andin proof thereof he has also signed in the said xerox copy of thephotos. P.W.4 had issued summons to Sunil Kumar on 7.12.1995requesting him to appear before NCB Office on 11.12.1995 at 2.00pm. He has also given a voluntary statement narrating theincident. Ex.P.50 is the summon issued to Sunil Kumar and hisstatement is Ex.P.51. Sunil Kumar know to speak Tamil, but hecannot write the same. The statement given by Sunil Kumr wasreduced to writing by P.W.4 and he obtained the signature of SunilKumar after he readover the contents in the statement and obtainedthe signature in the xerox copies of the photos of A1 to A3, whichwere shown to Sunil Kumar, who had identified them and signed inthose photos. They are Ex.P.52 to 54.8.8(i) P.W.5-C.Rangarajan is the Inspector of CentralExcise at Bombay. He was on deputation during September, 1995 tillDecember, 1995 in NCB Chennai as intelligence officer. He is anempowered Officer under NDPS Act. On 30.09.1995 at 9.00 pm anintelligence was gathered to the effect that one Rajeshyam Sharmahas brought about 3 ½ kgs of heroin for supplying the same to SheikMohammad and Murugan. Sheik Mohammed was living at No.57, LabbaiStreet, Pudupet, Madras, and Murugan was residing at No.3, Ellappan1st cross Street, and that Murugan and Shiek used to go to KavithaTelecom situated at No.4, Langs Garden Road, Pudupet, and if thesepremises were searched, the contraband can be recovered and that anIntelligence Report(Ex.P.1) was prepared to that effect andsubmitted to the Assistant Director for information. 8(ii) The Assistant Director asked P.W.5 to go to toRolax Lodge where Rajeshyam Sharma was residing in Room.No.206,along with his carriers staying at NO.207. At about 11.00 pm on30.09.1995 P.W.5 and his colleague Gopalan proceeded to Rolax lodgeand stayed there till early morning of the following day. At 10.00am on 01.10.1995, P.W.3-Mr.S.S.Krishnamurthy, Assistant Director ofNCB, came there and P.W.5 and his colleague informed that none cameout from the lodge Rooms No.206 & 207. P.W.5 along with hiscolleague went to the receptionist and confirmed the availabilityof persons who booked the Rooms No. 206 & 207 in them. AzizurRahman, the receptionist, was requested to be a panch witness andhe also agreed for the same. Narayanan Nair an employee of thelodge also agreed to be a panch witness. The above said panchwitnesses were informed about the Intelligence received and their https://hcservices.ecourts.gov.in/hcservices/ proposal to search Room.No.206 & 207 situated at their floor inRolax Lodge. 8(iii) When the door of Room.No.206 was knocked at, theaccused Rajeshyam Sharma opened the room from inside. The accusedRajeshyam Sharma(A4) was indentified by P.W.5 in the court. Afterrevealing their identity Rajeshyam Sharma was requested to subjecthimself for a personal examination, for which there was noresistance from Rajeshyam Sharma(A4). When it was informed toRajeshyam Sharma(A4) that his room is going to be searched, hedeclined the offer. P.W.5 also offered him and explained hisright to be searched in the presence of a Judicial Magistrate or aGazetted Officer. A4 waived the rights. The said right wasexplained to A4 in Hindi by P.W.5 and in Tamil by Gopalan, acolleague of P.W.5, to two panch witnesses. When the search was onprogress in the room of A4 he took out a small polythene packetfrom the right side pocket of his pant. When the paper of thepacket was unwrapped P.W.5 could see brown powder in it. When thepowder was tested with the help of field test kit, which answeredfor the presence of heroin, a narcotic drug. 8(iv) When the door of Room No.207 was knocked at, theaccused Sathish Ramlal(A5) was present, who was idendified by P.W.5in the Court. After introducing P.W.5, A5-Sathish Ramlal wasinformed about his right of being searched before a JudicialMagistrate or a Gazetted Officer, but the said right was waived byA5-Sathish Ramlal. On such search of Room No.207 nothing wasrecovered. Again P.W.5 came to Room No.206 and weighed therecovered powder through a balance which was brought with him. Itweighed approximately 4.5 grams. It was packed and sealed withSerial No.4 of NCB. The packed cover was marked as PS.1. Amahazar was prepared in the presence of panch witnesses for therecovery of the above said heroin. The mahazar was readover byGopalan in Tamil and P.W.5 in Hindi to all the witnesses and theaccused and the said mahazar is Ex.P.55. Ex.P.56 is the visitingcard recovered from Room No.206. The accused and panch witnessesand Mr.Gopalan, the officer, who has seized the contraband and theAssistant Director have signed along with P.W.5 in the Mahazar. 8(v) The property cum sample cover marked as PS1 containsthe contraband about 4.5 grams of heroin voluntarily handed over byRajeshyam Sharma and the cover contains the signatures of the panchwitnesses and the accused Rajeshyam Sharma. The cover was producedbefore E.O.II on 02.10.1995. The said cover is M.O.18. Afterdrawing the mahazar P.W.5 issued summons to Rajeshyam Sharma(A4),Sathish Ramlal (A5) and Mohanlal Ramlal. They received the summonsissued them and acknowledge the receipt of it. The summons issuedto them are Ex.P.57 to 59 respectively. They voluntarily came toour office along with P.W.5. Raheshyam Sharma(A4) gave hisvoluntary statement at about 2.00 pm. Ex.P.60 is the statementgiven by Rajehsyam Sharma(A4). The said statement was written by https://hcservices.ecourts.gov.in/hcservices/ him in Hindi in the presence of P.W.5. He voluntarily handed overHotel Rolax Temporary advance receipt Ex.P.61, Railway TicketEx.P.62, and the surcharge railway receipt bearing No.125022 isEx.P.62. The railway ticket is journey ticket from Bhopal toMadras central by Tamil Nadu Express on 28.09.1995 for threepersons. The copies of FIR and the charge sheet pertaining tohis case pending in Hyderabad was handed over to P.W.5 by RajeshyamSharma(A4), Which is Ex.P.28.8(vi) Rajeshyam Sharma(A4) had informed P.W.5 that hehad brought heroin of 3 ½ kgs to be supplied to A1 and A2.According to Rajeshyam Sharma(A4), on 30.09.1995 at about 10.30 amA2-Murugan came to Rolax Lodge and collected the entire heroin fromhim. He identified A1 , A2, A5 an A6. In Ex.P.60, A1, A2, A4 toa6 have signed. Ex.P.60 was written and readover to him(A4) andsigned by him(A4). The corrections made in Ex.P.60 was initiatedby A4. He has signed in all the pages and the document wasattested by P.W.5. On 01.10.1995 at about 3.30 pm all theformalities were over and at about 3.45 pm, P.W.5 startedrecording the voluntary confession statements of Sathish Ramlal(A5)and it concluded at 5.00 pm. A5 identified A4 who brought him toChennai as a carrier of the contraband. Ex.P.64 is the statementgiven by A5 and recording of statement of A5 was over by 5.00 pm.At 5.15 pm on the same day A6 gave voluntary statement beforeP.W.5. Since he is not conversant in writing Hindi, he asked hisbrother A5 to write his statement. Ex.P.65 is the statement of A6.At its bottem A5 has also endorsed. The recording of statement ofA6 was concluded at 6.30 pm. Since P.W.5 got himselfsatisfied that a prima facie case has been made out against A4, A5and A6, he arrested them. Ex.P.66 to 68 are the arrest memo issuedby P.W.5. A4 to A6 have signed in the respective arrest memos.After arresting them, P.W.5 prepared a report under Section 57 ofthe NDPS Act and forwarded the same to the Assistant Director, hisimmediate superior officer. Ex.P.69 is the said report. P.W.5handedover A4 to A6 to the Investigation Officer on 01.10.1995 at7.45 pm.9. 9(i) P.W.6-Ms.V.Saratha, the Assistant Chemical Examinorin the customs laboratory, Chennai, is a post graduate decreeholder in M.Sc. Chemistry. She is having a vast experience in thesaid job for the past 32 years. She is a recognized chemicalanalyst. She had received a requisition-Ex.P.22 from the Courtalong with a test memo-Ex.P.27 through her office. A person byname M.V.S.S.Sasthri had brought five covers with court seal andNCB seal. All the said covers were received at the laboratoryafter assigning serial Numbers of registration. The seals found inthe five paper packets were in good condition. 9(ii) When the said five packets were opened, she couldsee a plastic cover in each packet and each cover was containingbrown powder. She has weighed all the five plastic covers https://hcservices.ecourts.gov.in/hcservices/ including the brown sugar separately with the help of electricalbalance available in her office. She has also weighed each packetsseparately through the same electrical balance. In cover marked asS1, which was exhibited as M.O.1, she had marked her office No.301with date 6.10.1995. The total weight of the brown powder of theplastic cover weighed 6.02 grams. After taking samples forchemical examination, the remaining powder along with plastic coverwas weighed and repacked and returned to the Court by affixing theoffice seal, ie. M.O.1. In the said marking S.3 was noted withblue ink on the surface of the cover. It was also assigned officeNo.302 with date 6.10.1995. When the cover was weighed withplastic, it weighed 6.00 grams. When the cover reweighed after thesample powder was taken for chemical examination, it weighed 5.43grams along with plastic cover. The said cover was once againreturned to the Court with office seal. The said cover is M.O.3.It was marked as S.1 in green ink. 9(iii) When the brown powder in the plastic packetweighed 5.98 grams, it was assigned office No.303 dated 6.10.1995.When the brown powder along with the plastic packet after thesample for chemical examination was taken weighed 5.25 grams. Thesaid brown powder was once again placed in the paper cover andsealed with office seal and then sent to the Court, ie. M.O.2. Onthe said cover it was marked as S3 in green ink and laboratoryNO.303 and date 6.10.1995 were superscribed on the cover. When theplastic cover was weighed along with brown powder it weighed 6.506grams. When it was weighed after sample powder was taken forchemical examination it weighed 5.63 grams. The balance brownpowder was placed in the same paper cover and returned to the Courtafter affixing their office seal on the cover, ie., M.O.14. OfficeNo.305 was assigned over the cover which was marked as PS.1. Whenthe brown powder was weighed along with the plastic cover, whichwas superscribed with date 6.10.1995, it measured 4.52 grams.After taking the sample powder, the remaining powder when weighedwith plastic cover, it weighed 4.2 grams. The said powder wasagain placed in the same cover and after affixing the office arrackseal on the cover, it was sent to the Court, ie. M.O.18. 9(iv) When the sample contraband powder from five packetswere tested, the test answered for heroin, a narcotic drug. Thechemical name for the same is Diacetyl Morphine. Ex.P.70 is theinterim report dated 19.12.1995 sent by her. After completing theentire chemical examination, he had sent the analysis report dated8.3.1996 with her final report to the Court, which is Ex.P.71. Shehas further stated in the final report dated 8.3.1996 below hersignature by inadvertently she had put the date as 8.6.1993 insteadof 8.3.1996. She has further stated that in Ex.P.71 she has notedthe percentage of the presence of Diacetyl Morphine in the samplestaken for analysis. In Ex.P.70-report, mentioning as "two of themS2" has been a typographical mistake, it should have been read asS.3 instead of S2. On 8.3.1996, Intelligence Officer of NCB https://hcservices.ecourts.gov.in/hcservices/ Mr.Gopalan came to the laboratory and received the five sealedcovers from their office for handingover the same to the Court.10. P.W.7-Mr.C.Narayan Nair, an independent witness for theseizure of contraband from A4 at Rolax Lodge, turned hostile.11. P.W.8, Mr.Gurusamy, after having admitted his signature inEx.P.3 and Ex.P.8 mahazars has not supported thecase of theprosecution. Hence, he was also treated as a hostile witness bythe prosecution.12. 12.(i) P.W.9-Mr.S.S.Krishnamurthy, is the InvestigationOfficer in this case. P.w.9 in his evidence has deposed that heis working as an Assistant Director in NCB, South Zone, Chennai,who is a gazetted officer. He has been empowered under Section 41(2) of the NDPS Act to assign work to his subordinate officers.P.W.9 would depose that he gave instructions to intelligenceofficer Rangarajan, Vijayalakshmi and Sasthri, on the basis of theintelligence report he received on 30.09.1995 at about 9.00 pm. Hehas given instructions to the above said intelligence officersregarding the steps to be taken on the basis of the saidintelligence report. As per his instructions, the officers weredivided into three groups and sent to three different places forthe purpose of Surveillance. Intelligence officer Vaithiyanathanwas sent to the hosue of A1-Sheik Mohammad for the purpose ofsurveillance and intelligence officer Shanmugam was sent to STDBooth by name Kavitha Telecom for the purpose of surveillance andMr.Rangarajan, intelligence officer, was sent to Room.No.206 & 207in Rolax Lodge for the purpose of making surveillance in respect ofthe persons staying in the said rooms in the said lodge. P.W.9has supervised the surveillance made by the above said threeofficers. On 01.10.1995 morning he went to A1's house along withintelligence officer Vijayalakshmi (P.w.1). The intelligenceofficer Vaithyanathan has secured two independent witnesses as perhis instructions. P.W.9 along with Ms.Vijayalakshmi entered intothe house of Sheik Mohammed(A1) and conducted the search. From aportion of A1's house he had seized 1.500 kgs of heroin, anarcotic drug, in the presence of A1. 12(ii) While he was indulged in the seizure of heroin in A1'shouse, he received information from the other two places from wherehe had sent the intelligence officers for the purpose ofsurveillance. Mr.Shanmugam, intelligence officer sent for takingsurveillance at STD Booth (Kavitha Telecom) has informed that A2and A3 have come to the said STD Booth. P.W.9 has informedShanmugam that as per the intelligence report he had received thereis every possibility for A2 & A3 to possess 2.00 kgs of heroinpowder. P.W.9 has further instructed the intelligence officerShanmugam to procure two independent witnesses to conduct a searchin the said STD Booth, where he will come shortly. After https://hcservices.ecourts.gov.in/hcservices/ completing the seizure of 1.500 kgs of heroin at A1's house, P.W.9proceeded to the STD Booth (Kavitha Telecom) where intelligenceofficer Shanmugam, who had informed that no one has comeforward tostand as a witness for the search and hence, he had askedMr.C.Narayanan Nair(P.W.7) and Gurusamy (P.w.8), who stood aswitnesses for the seizure of the contraband in A1's house, to be awitness for the search and seizure to be conducted in STD Booth(Kavitha Telecom), for which the above said witnesses have alsoagreed. P.W.9 immediately went to Kavitha Telecom STD Booth alongwith the two witnesses and A1 and other officers. 12(iii) After consulting with Shanmugam, intelligenceofficer, he had conducted search in accordance with the provisionsof the NDPS Act. From the drawer of the iron table kept insideKavitha Telecom STD Booth, an yellow coloured Polythene bagcontaining two packets which contain heroin weighing 2 kgs werefound. When he enquired about this with A2-Murugan and A3-KattinDurai, they informed that Rajeshyam Sharma, who is residing atRolax Lodge Room No.206 had handedover to them 3.500 kgs of heroinout of which they gave 1.500 kgs heroin to A1-SheikMohammed and remaining 2.00 kgs of heroin was kept with them.After confirming the fact of staying of Rajeshyam Sharma inRoom.No.206 at Rolax Lodge from the officer who was on the duty ofsurveillance in Rolax Lodge, P.W.9 proceeded to the said lodgeafter sending the intelligence officers Ms.Vijayalakshmi andShanmugam to the NCB office along with A1-Sheik Mohammed, A2-Murugan and A3-Kattin Durai, P.W.9 along with the intelligenceofficer on surveillance duty at Rolax lodge went to Room.No.206where he found Rajeshyam Sharma(A4) and also ascertaining the factthat two persons associated with A4, in carrying the narcotic drug,are residing at Room.No.207 in the same Rolax Lodge, he placed twoNCB officers in front of the above said two rooms for the purposeof guarding the same. When the door of Room.No.206 was tapped byP.W.9, the same was opened by the inmate. He had conducted searchin Room.No.206 & 207 in accordance with the provisions of law. Atthat time A4-Rajeshyam Sharma informed him about his stay inMansaur and also his association with A1-Sheik Mohammed and A2-Murugan and also informed that on 30.09.1995, morning he gave 3 ½kgs of heroin. When P.W.9 was about to conduct search on theperson of A4-Rajeshyam Sharma, he(A4) voluntarily comefarward andproduced a small cover from his right pant pocket, which contained4.5 grams of heroin powder. A4 has brought Sathis Ramlal (A5) andMohanlal Ramlal(A6), the other two associates of A4. P.W.9returned to his officer along with A4 to A6 and recorded thestatements of A4 to A6. 12(iv) P.w.9 had arrested all the accused and remandedthem to judicial custody. The seized contraband were kept in thegodown which was under the control of P.W.9. The seized contrabandwere sent to the Court along with the accused at the time when theaccused were sent for remand. He has submitted a report to his https://hcservices.ecourts.gov.in/hcservices/ superior officer as per Section 57 of the NDPS Act. P.W.9 has madearrangements to conduct a detailed enquiry on the basis of thestatement given by the accused and also on the basis of thecontraband seized from them. After completing the investigation hehas preferred a complaint to the Court. Ex.P.72 is the reportsubmitted by him under Section 57 of the NDPS Act to his higherofficials. Ex.P.73 is the forwarding memo for having sent 4.5grams of heroin to his godown. Ex.P.74 is the godown receiptNo.10/95. Ex.P.75 is the report under Section 57 of the NDPS Actsubmitted by Mr.Gopalan, an intelligence officer, who had conductedsurveillance at Rolax Lodge and he has also identified A1 in theCourt, who alone was present on the date of examination of P.W.1 on7.8.1997. 13. On the basis of the above said evidence, incriminatingcircumstances under Section 313 of Cr.P.C. were put to theaccused. They denied their complicity with the crime. A1 to A6would retracted their confession by saying that their confessionwere obtained by NCB officials under threat and torture. Tosubstantiate this contention, the accused have also examined theDoctor who had treated A1 to A4, as D.W.1, in central jailhospital. The nominal register was filed as Ex.D.1.14. After going through the evidence both oral anddocumentary, the learned trial judge has come to a conclusion thatthe guilt against the accused under Section 8(c) r/w 21 and 29 ofthe NDPS Act was not proved beyond any reasonable doubt andconsequently he has acquitted all the accused from the chargeslevelled against them. Aggrieved by the findings of the learnedtrial Judge, the State has preferred this appeal. 15. Now the point for determination in the appeal is whetherthe Judgment of the trial Court are palpably wrong, manefestlyerroneous or demonstrably unsustainable warranting interference bythis Court in the findings of the trial Court of acquittal of allthe accused in C.C.No.631/1995 on the file of the Court of SpecialJudge, for NDPS Act cases, Chennai? 16. The point:- I have heard the learned Mr.N.P.Kumar,Special Public Prosecutor for the appellant/state andMr.Rajarathinam, Amicus Curea, for the respondents/accused andconsidered their rival submissions.16 (i)The charge levelled against A1 to A6 is underSection 8(c) r/w 21 and 29 of the NDPS Act. The first allegationof the prosecution is that A1 to A6 entered into a criminalconspiracy to procure 3.5 kgs of heroin from Mandsaur (M.P),transport it to Chennai and from here to illegally export it out ofIndia. The second charge under Section 8(c) r/w 29 NDPS Act (itshould be under Section 21 of NDPS Act), is that A4 to A6 procured305 kgs of heroin from Mandsaur in September 1995 and transported https://hcservices.ecourts.gov.in/hcservices/ by road to Madras. Third charge is against A1 and A2 underSection 8(c) r/w 21 of the NDPS Act. According to the third chargeA2 received 3.5 kgs of heroin from A4 and handed it over to A1.From 3.5 kgs, A1 gave A3, 2 kgs for safe custody. Fourth chargeis under Section 8(c) r/w 21 against A1 for having found inpossession of 1.5 kgs of heroin on 1.10.1995 at his residence inPudupet. Fifth charge is under Section 8(c) r/w 21 against A2 andA3 for having found in 2 kgs of heroin on 01.10.1995 in KavithaTelecom, Pudupet.16(ii) The learned counsel appearing for theappellant/State would contend that the trial Court has acquittedthe accused for the following reasons:- As per Section 42(2) ofthe NDPS Act, if an officer commences investigation on the basis ofany information he had received, he shall within 72 hours send acopy thereof to his immediate superior officer, but in his casewithout following the provisions contemplated under Section 42(2)of the NDPS Act, P.W.9 has commenced the investigation. Thelearned Special Public Prosecutor would contend that Ex.P.1 is notan information on which P.W.9 has investigated the case, but Ex.P.1is an intelligence report received at the office of NCB, on thebasis of which it was submitted by P.W.1 to her immediate superiorofficer viz., the Assistant Director of NCB, Chennai, P.W.9, whohad given permission to take further action on the basis of theintelligence report Ex.P.1 to P.W.1. The learned Special PublicProsecutor in this connection relied on a case reported in 2001 MLJ(Crl) 680 [ 1.M.Mahendran @ Nithiya @ Nidhi, 2. S.Bhaskar(Appellants in C.A.643/97), 1.S.S.M.Rajanayake, 2.Prasanth Ajeeth(Appellants in C.A.644/97), 1.A.Amal Doss @ Ranga @ Ravi,2.Vijayakumar @ Kumar (Appellant in C.A.890/97) Vs. State repby Intelligence Officer, NCB, South Zone, Chennai, respondent inall the appeals/complainant), and contended that the provision ofSection 42(2) of the NDPS Act has not been attracted in this Casebecause P.W.9 has proceeded with the investigation not on the basisof any information received, but on the basis of Ex.P.1-intelligentreport. The relevant observation by the learned judge of thisCourt in the above said dictum runs as follows:"There is no prohibition under the Act that anempowered Officer cannot initiate proceedings on thebasis of materials gathered other than by way ofinformation or personal knowledge. There could be verymany circumstances where an empowered offier cold comeacross a violation of the provisions of the NDPS Actwithout there being any information about the same ornot based on his own personal knowledge. Thereforesuch f those exceptional category of cases would fallout side the purview of Section 42 of NDPS Act. Inthis context, reliance can be placed upon the Judgmentof the Honourable Supreme Court reported in 2000 (7)SCC page 632 (KARNAIL SINGH versus STATE OF RAJASTHAN). https://hcservices.ecourts.gov.in/hcservices/ In paragraph 8 of the said Judgment, the HonourableSupreme Court was pleased to observe that "....... for attracting the applicability ofSection 42, it is necessary that the Officerempowered thereunder, before exercise of hisright, has reason to believe from personalknowledge or information regarding the movement ofnarcortic drug or psychotropic substance.However, if the action is taken not upon hispersonal knowledge or information, the requirementof Section 42 would not be applicable. In thecase on hand, as found by me, the IntelligenceReport need not necessarily be taken as the onebased on information and the case of theprosecution that the same was not based oninformation, but only on the basis of materialsgathered through the Intelligence and where thereis every reason to believe the said case put forthby the prosecution, I hold that Section 42 was notattracted to the case on hand."The above dictum squarely applies to the present facts of the case.In the case on hand also the NCB officials have proceeded with theinvestigation only on the basis of Ex.B.1-intelligence report andnot on the basis of any information as contended by the learnedcounsel appearing for the respondents to attract the violation ofthe provisions under Section 42(2) of the NDPS Act. 16(iii) The learned counsel for the respondents in thecourse of his argument focus the attention of this Court to theevidence of P.W.9 in the cross-examination of A4 to A6, whereinP.W.9 has stated that the intelligence officer who are workingunder him have acted upon the information they received and thatapart from Ex.B.1-intelligence report, he has also received otherinformation also and out of them some of the information have beenrecorded and some of the information were given orally. Relying onthe above said evidence of P.W.9 in the cross-examination, thelearned counsel for the respondents/accused would contend thatthere is violation of the provisions contemplated under Section 42of the NDPS Act. But, P.W.9 in the second chief-examination hascategorically deposed to the effect that some of the information hehas received were not worthwhile to take any further action andthey are not so important to be informed to the Court and thatexcept the intelligence report under Ex.P.1, there is no otherinformation received by him of any use to take any further actionin the matter. Hence, they relied only on Ex.P.1-intelligencereport in this case to take further action. Under suchcircumstances, as correctly pointed out by the learned SpecialPublic Prosecutor, the findings of the learned trail Judge that theprosecution has filed to follow the provision under Section 24(2) https://hcservices.ecourts.gov.in/hcservices/ of the NDPS Act, which is vital to the prosecution case, cannot besustainable in lieu of the ratio decidendi laid down in 2001 MLJ(Crl) 680.16(iv) The learned trial Judge has thrown out the case ofthe prosecution on the ground that there is a violation of theprovisions contemplated under Section 57 of the NDPS Act. Section57 of the NDPS Act runs as follows:"Report and arrest and seizure:- Whenever anyperson makes any arrest or seizure under this Act,he shall, within forty eight hours next after sucharrest or seizure, make a full report of all theparticulars of such arrest of seizure to hisimmediate official superior"The learned counsel appearing for the respondents/accused wouldcontend that P.W.1, 2 and 5 have submitted the intelligence reportEx.B.1for further action to Assistant Director who is not animmediate superior officer. The learned Special PublicProsecutor would submit that P.W.1 and 5 who have signed in Ex.B.1-intelligence report have submitted the same to P.W.9, the AssistantDirector of NCB, Chennai, who is a superior officer available atthe relevant point of time since, the immediate superior officerviz. Superintendent of NCB was on leave and no officer was postedat the relevant point of time. P.W.5, Intelligence Officer ofNCB, who has also signed in Ex.P.1-intelligence report in hisdeposition dated 30.7.1997 to the cross-examination of A4 to A6 hasadmitted that the next superior officer in the office is theSuperintendent of NCB and in September 1995 there was noSuperintendent in their office and by the time when Ex.P.1-intelligence report was recorded, it was brought to the nextsuperior officer viz. P.W.9, the Assistant Director, with whom theintelligence officers who have signed in Ex.P.1 had discussion on30.9.1995 till 11.00 pm and as per the directions of the superiorofficer viz. P.W.9 further steps were taken in three places asdirected by him. P.W.1, who had conducted search and recovery of1.500 kgs of brown powder (heroin) from the house of A1, hassubmitted that a report under Section 57 of the Act, which has beenexhibited as Ex.P.6, to her superior officer viz. The AssistantDirector of NCB, P.W.9. P.W.5, who had conducted search andrecovery of 4.5 grams of narcotic drug (heroin) from A4 in RoomNo.206, Rolax Hotel, has submitted a report under Section 57 of theNDPS Act to his superior officer viz. Assistant Director, P.W.9,under Ex.P.69. P.W.2, who has recovered 2 kgs of heroin from A2and A3 from Kavitha Telecom STD Booth, has submitted Ex.P.20-reportunder Section 57 of the NDPS Act to his superior officer viz.Assistant Director, P.W.9. So the findings of the trial Court thatthe provisions contemplated under Section 57 of the NDPS Act wasnot properly followed is not sustainable. https://hcservices.ecourts.gov.in/hcservices/ 16(v) The point raised by the learned Amicus Curiaeappearing for the respondents/accused is that the independentwitnesses examined on behalf of the prosecution viz. P.W.7 & P.W.8have not supported the case of the prosecution and hence, he wouldcontend that the recovery of contraband made from A1 to A4 cannotbe believed at all. To contravert the submission made by thelearned Amicus Cure appointed to defend the accused by the Court,the learned Special Public Prosecutor relying on a decisionreported in 2003(8) Supreme 62 (P.P.Fathima Vs. State of Kerala)contended that merely because panch witness had not supported thecase, is no reason to reject the prosecution case if otherwiseevidence regarding seizure was acceptable. 16(vi) It is the definite case of the prosecution that onthe basis of Ex.P.1-intelligence report, P.W.1 along with P.W.9proceeded to the house of A1 situated at Door No.57, Labbai Street,Pudupet, Chennai, and after following the mandatory provisionscontemplated under Section 50 of the NDPS Act, had conducted asearch after A1 had waived his right under Section 50 of the NDPSAct. The above search being conducted before a Gazeted officer orbefore a Judicial Magistrate, the search was however conducted inthe presence of P.W.9, a Gazetted officer, who happened to be theAssistant Director of NCB, as a result of the search, from anunsused kitchen in the second floor, a cloth bag was found, whichcontained polythene covers in which two packets containing brownpowder were recovered and one bulk packet weighed 1 kg of heroinand the other packet weighed 500 grams of heroin. When a smallportion of the contents of the said bag were tested with the helpof test kit, they answered for the presence of heroin, a narcoticdrug. All the formalities were duly followed in seizure of thecontraband under Ex.P.3 by P.W.1 and P.W.9 and they were sent tothe chemical laboratory at customs house for chemical analysis.The seizure of contraband from A2 and A3 were also made by P.W.2,intelligence officer of NCB, in the presence of P.W.9, who aftercompleting the seizure in A1's house had proceeded to STD booth atDoor No.4, Langs Garden road, Pudupet, Chennai, from where P.W.2was in surveillance from 30.09.1995 night 10.30 pm and had alsoinformed about the arrival of A2 and A3 on 01.10.1995 at 8.15 am toP.W.9. After following the mandatory provisions contemplatedunder Section 50 of the NDPS Act and after A2 and A3 have waivedtheir right and agreed for the search being conducted before aGazetted officer viz. P.W.9, an yellow bag was seized from thedrawer of an iron table present in the above said STD Booth room,which contained two polythene covers weighing each 1 kg. Whensample was taken and tested with the help of the test kit, it wasrevealed that the seized contraband is heroin, a narcotic drug.After following all the procedures, the above said contraband wasseized under Ex.P.8-mahazar. 16(vii) P.W.5, who was sent by P.W.9 to conductsurveillance at Rolax Hotel Room No.206 & 207 along with his https://hcservices.ecourts.gov.in/hcservices/ colleague Gopalan, conducted surveillance just opposite to thelodge from 11.00 pm at 30.09.1995 till 10.00 am on 1.10.1995 andafter informing P.w.9 that no one has come out of the lodge RoomNo.206 and 207, thereafter contacted receptionist of the Rolaxlodge for confirming the availability of presence who took theroom.No.206 & 207 and after securing P.W.7-Narayanan Nair andanother witness Azizur Rahaman, the receptionist as panchwitnesses, conducted the search in the above said rooms afterfollowing the mandatory provisions contemplated under Section 50 ofthe NDPS Act, for A4-Rajeshyam Sharma, an occupant of theroom.No.206 for the search being conducted in the presence of aJudicial Magistrate or a gazetted officer, P.W.5 began to conductthe search, A4-Rajeshyam Sharma, took out a small polythene packetfrom his right side pocket of his pant. The said packet weighed4.5 grams. When a small quantity was tested with the help of fieldtest kit, it answered the presence of heroin. When a search wasconducted in Room No.207 where A5 and A6 were found in occupation,nothing was recovered. After following the formalities for packingand sealing the seized contrabands, the contrabands seized undermahazar Ex.P.55, were sent to chemical laboratory at customs housefor chemical examination. 16(viii) So, the recovery of the contraband from A1 underEx.P.3, from A2 & A3 under Ex.P.8 and from A4 under Ex.P.55 aremade after following all the mandatory provisions of law. Theofficer who have seized the above said contraband have meticulouslyfollowed the mandatory provisions contemplated under section 50 &57of the NDPS Act. So, the fact that P.W.7 and P.W.8, independentwitnesses, have merely not supported the case of the prosecutionwill not lead us to reject the entire case of the prosecution,since the evidence of the other witnesses regarding the seizure hasbeen proved beyond any reasonable doubt in this case. The aboveproposition of law has been reiterated in 2003 AIR SCW 4975(M.Prabhulal s. Assistant Director, Directorate of RevenueIntelligence), which runs as follows:-"Learned counsel contends that the independentwitnesses of the recovery of the contraband having notbeen examined and only police witnesses having beenexamined, the recovery becomes doubtful. Reliance isplaced upon the decision in pradeep Narayan madgaonkarand others v. state of Maharashtra (1995 (4) SCC 255).In the decision relied upon while observing thatprudence dictates that evidence of police witnesses needto be subjected to strict scrutiny, it was also observedthat their evidence cannot be discarded merely on theground that they belong to police force and are eitherinterested in the investigating or prosecuting agency,but as far as possible, corroboration of their evidencein material particularly should be sought. In that casethe observations were made in the light of the fact that https://hcservices.ecourts.gov.in/hcservices/ the police officials made an attempt to create animpression on the Court that the two witnesses werewitnesses of locality and were independent, knowingfully well that one of the witnesses was under theinfluence of the police and available to police as hehad been joining the raids earlier also and otherwitness was a close associate of the said alreadyavailable witness. The friendship between the twowitnesses developed during the days of gambling when thepolice having admittedly conducted a raid at their den.In was observed that the very fact that the policeofficer joined the said two witnesses creates a doubtabout the fairness of investigation coupled with themanner in which the statements had been recorded in thatcase. The observation relied upon have no applicabilityto the facts and circumstances of the present caseparticularly having regard to the confessionalstatements of the appellants which we have held werevoluntary. On the facts of the case, recovery cannotbe doubted for want of non-examination of independentwitnesses."In the case on hand from the above dictum the case of theprosecution cannot be branded as a put up case on the mere factthat P.W.7 and P.W.8 independent witnesses turned hostile but, theentire case of the prosecution hinges upon the evidence of NCBofficials alone. There is no animosity attributed against the NCBofficials who have been cited as witnesses in this case to foist acase of this nature against A1 to A6. Further more the witnessesherein have recorded voluntary confession statements of the accusedA1 to A4, which are Ex.P.11 (A1), Ex.P.12 (A2), Ex.P.13 (A3) andEx.P.24 (A4). 16(ix) The learned Amicus Curiea appearing for theaccused would contend that the above said confession statementcannot be relied on because they were obtained under coercion andthreat and also under bodily violence and torture. The learnedAmicus Curea in support of his contention relied on the evidence ofD.W.1, Dr.S.kathivel, who was working as Assistant Surgeon atCentral Jail Hospital, Chennai, during the relevant period. Hehas also produced nominal register which was marked as Ex.D.1.According to D.W.1 he had examined A1 to A3 on 3.10.1995 i.e.,subsequent to the date of remand by the Judicial Magistrate on2.10.1995. It is seen from Ex.P.66 to 68 that the accused werearrested on 01.10.1995. From Ex.P.14 to 16, it is seen that A1 toA3 respectively were arrested on 1.10.1995. Ex.P.19 is theremand report relating to all the accused, which shows that A1 toA6 were remanded to Judicial Custody on 2.10.1995 at 11.30 am. Inthe above remand report it has been specifically endorsed by theMagistrate, who had remanded A1 to A6 to the Judicial custody tothe effect that no complaint of ill-treatment was made against NCB https://hcservices.ecourts.gov.in/hcservices/ officials". Under such circumstances, we cannot come to theconclusion that the above said confession statements viz. Ex.P.11to 13 relating to A1 to A3 respectively and Ex.P.24 to 26 relatingA4 to A6, have been obtained under threat, coercion and torture onthe basis of the evidence of D.W.1, the Doctor, who had admittedexamined A1 to A3 only on 3.10.1995. If there was any bodilyinjury found on the accused the prison authority would not haveadmitted the accused inside the prison without being treated by adoctor. There is absolutely no evidence on record to show that theaccused have been tortured by NCB officials in getting the abovesaid confessional statements viz. Ex.P.11 to 13 and 24 to 26.16(x) The learned Admicus Curea appearing for theaccused/respondents pointed out that the trial Judge hasdisbelieved the seizure of contraband from A1 on the ground thatonly from an unused kitchen 1.500 kgs of heroin was said to beseized and the prosecution has failed to prove that A1-SheikMohammed was found in "conscious physical possession" of 1.500 kgsof heroin powder. The learned Amicus Curiae for this propositionof law relied on JT 1996(2) SC 636 (Mohd.Alam Khan Vs. NCB &Another). The facts of the above said case in brief are asfollows:-"On information NCB, Bombay, conducted a raid atthe residence of the appellant situated at secondfloor, S.M.Mansion, 299 Bellasis Road, Bombay, andseized some incriminating documents along with cashamount of Rs.45,000/-. In connection with theseizure the accused/appellant was brought to NCBoffice at Bombay for the purpose of interrogation.Further information was received to the effect thatthe appellant was trafficking in narcotic andpsychotropic drugs in a big way and that he hadstored Mandrex tablets numbering 50,000 to 60,000 inan house. In the course of the search and seizureof the said premises along with the contrabandtablets, an agreement dated 9.3.1989 supposed to havebeen signed by the appellant in favour of thepromotor/builder was also seized by the officials.Only on the basis of the abvoesaid agreement, theaccused was roped into the offence on the ground thatthe building from where the above said narcotic drugand contrabands were seized. While disposing of theappeal, the Honourable Apex Court observed asfollows:-"The High Court was not right in holdingthat the learned Trial Judge was thereforeright in holding that in view of Section 66 ofthe NDPS Act, the said document can be admittedin evidence and it goes to show that the saidflat was owned by the appellant. Again the https://hcservices.ecourts.gov.in/hcservices/ High Court observed that 'even assuming' thatthe said agreement is excluded fromconsideration, there remains the specificinformation received, Exhbt.33 and his ownstatement recorded by the Authority underSection 313, Exhbt.83 and 84 and all of them goto show that the appellant was the owner of thesaid flat. As pointed out earlier that nobodyhas identified that flat in question asbelonging to the appellant and in the absenceof corroborating evidence, one cannot come to aconfirmed conclusion regarding ownership andpossession on the basis of the retractedstatements of the appellant alone.'But the facts of the case on hand is entirely different from thefacts of the above said ratio. In this case the contraband of1.500 kgs heroin was seized in the presence of A1, in the housewhere he was actually residing with his family members at DoorNo.57, Labby Street, Pudupet, Chennai, under his confessionstatement Ex.P.12. 16(xi) Per contra, the learned Special Public Prosecutorrelying on 2003 AIR SCW 4536 (Megh Singh Vs. State of Punjab), andcontended that under Section 20(b) of the NDPS Act possession ofcontraband articles is an offence. In order to make the possessionillicit, there must be a conscious possession. The expression'possession' is a polymorphous term which assumes different coloursin different contexts. It may carry different meanings incontextually different backgrounds. It is impossible, to work outa completely logical and precise definition of 'possession'uniformly applicable to all situations in the context of allstatutes. The word 'conscious' means awareness about a particularfact. It is a state of mind which is deliberate or intended. Oncepossession is established the person who claims that it was not aconscious possession has to establish it, because how he came to bein possession is within his special knowledge. Section 35 of theAct gives a statutory recognition of this position because ofpresumption available in law. Similar is the position in terms ofSection 54 where also presumption is available to be drawn frompossession of illicit articles. The exact observation in the aboveratio of the Honourable Apex Court is as follows:-"The word 'possession' means the legal right topossession (Health V. Drown (1972(2) All ER 561 (HL). Inan interesting case it was observed that where a personkeeps his fire arm in his mother's flat which is saferthan his own home, he must be considered to be inpossession of the same. (Sullivan Vs. Earl of Caithness(1976 (I) ALL ER 844 (QBD).Once possession is established the person who claimsthat it was not a conscious possession has to establish https://hcservices.ecourts.gov.in/hcservices/ it, because how he came to be in possession is within hisspecial knowledge. Section 35 of the Act gives astatutory recognition of this position because ofpresumption available in law. Similar is the position interms of Section 54 where also presumption is availableto be drawn from possession of illicit articles. Thisposition was highlighted in Imadan Lal and another Vs.Sate of Himachal Pradesh (2003 (6) SCALE 482).So from the ratio decidendi cited above, it is clear that theburden of proof is heavily on the accused who claims that he is notin conscious possession of the contraband. Absolutely there is noevidence on the side of the accused in this case to show that A1was not in conscious possession of 1.500 kgs. of heroin, which wasseized by P.W.1 and P.W.9 under Ex.P.8-mahazar, on the basis ofEx.P.11, voluntary confession statement of A1. So, the ground ofacquittal by the trial Court on the ground that A1 was not inconscious possession of the contraband cannot be sustainable.16(xii) The learned Amicus Curiea appearing for therespondents/accused would attack Ex.P.4, forwarding memo, dated1.10.1995 prepared by P.W.1, on the ground that according to P.W.1after seizure of the contraband weighing 1.500 kgs from A1 underEx.P.3-mahazar, she went to NCB office and deposited the contrabandseized in the NCB office godown and then prepared the forwardingmemo-Ex.P.4, but it contains all the six accused names, whichcannot be possible at that time for P.W.1 to note the names of allthe accused. This point was controverted by the learned SpecialPublic Prosecutor appearing for the appellant/State by focusing theattention of this Court to Ex.P.1-intelligence report, which wassigned by P.W.1-himself along with P.W.5 and submitted to theAssistant Director of NCB, P.W.9. But a careful reading of Ex.P.1will clearly go to show that the intelligence report contains onlythe names of A1 to A4 alone, but not the names of the carriers A5 &A6. So, the name of A5 and A6 found in Ex.P.4 cause a cloud onthe case of the prosecution to the effect how P.W.1 was able tomention the name of A5 and A6 already in Ex.P.4. Further nocontraband was recovered from A5 and A6, who were said to bestaying in Room.No.207 at Hotal Rolax. There is also no evidenceto show that A5 to A6 have carried the contraband seized from theother accused viz. A1 to A4. Under such circumstances, the appealagainst the acquittal as against A5 and A6 cannot be interferedwith at all. 16(xiii) The learned Amicus Curiea appearing for therespondents/accused would also attack Ex.P.7 on the ground that inthe summon served on A1 on 1.10.1995 under Section 67 of the NDPSAct, NCB's file No.48/1/5/95/NCB/MDS has been mentioned which willthrow suspicion on the prosecution case because the file numberwill be given only after the case has been registered against theaccused. To answer this quarry raised by the learned Amicus https://hcservices.ecourts.gov.in/hcservices/ Curiea, the learned Special Public prosecutor would clarify theposition that NCB Chennai is a small unit with eight officers andthey do not have case like regular police and therefore puttingthe filing number in Ex.P.7 cannot be a ground to doubt theprosecution case. Further it is pertinent to note in this casethat with regard to this there is no question put in the cross-examination neither to P.W.9 nor P.W.1. In the cross-examinationdated 30.5.1996 P.W.1 has clearly stated that godown register andcrime register are maintained in the office and the crime numberregister was made after the contraband was seized. Even thoughthere is question challenging the validity of Ex.P.4 was put toP.W.1 in the cross-examination, there is no question challengingEx.P.7 was put to P.W.1. P.W.2 who speaks about Ex.P.7 hasdeposed in his chief examination that as per the direction of theAssistant Director, he gave Ex.P.7 to A1. There is no questionpertaining to Ex.P.7 was put to P.W.2 challenging the validity ofthe same. Under such circumstances, it cannot be said that themere mentioning of the file number in Ex.P.7 has vitiated theentire prosecution case.16(xiv) The attack on the voluntary confession statementof the accused A1 to A6 under Section 67 of the NDPS Act, made bythe learned Amicus Curiea is, that was not recorded then and there.But the explanation given by the prosecution is that theprosecution was conducting series of search in three differentplaces one and the same day and after completing all the search andseizures, the suspects were questioned and their statementsrecorded under Ex.P.11 to 13 and 24 to 26.16(xv) Principles to be followed while deciding anappeal against acquittal has been laid down in AIR 1988 SC 1998(State of UP Vs. Anil Singh) as follows:-"But this Court will not hesitate to interfereif the acquittal is perverse in the sense that noreasonable person would have come to that conclusion, orif the acquittal is manifestly illegal or grosslyunjust. ................................... ......... It is necessary to remember that a Judge doesnot preside over a criminal trial merely to see that noinnocent man is punished. A Judge also presides to seethat a guilty man does not escape. One is as importantas the other. Both are public duties which the Judgehas to perform."When coming to the case on hand a reading of the judgment of thetrail Court will clearly go to show that the reasoning given by thelearned trial Judge for acquittal of all the accused inspite ofoverwhelming evidence both oral and documentary are available tobring home the guilt of A1 to A4, the judgment of the trial Courtis certainly to be assessed as perverse. From my abovediscussion, I do not hesitate to come to a conclusion that thejudgment of the trial Court is palpably wrong, manifestly https://hcservices.ecourts.gov.in/hcservices/ erroneous and demonstrably unsustainable as against A1 to A4 whichnecessitated this Court sitting in appeal to interfere with thefindings of the learned trial Judge as against A1 to A4. ThisCourt is of the firm view that the guilt against the accused 1 to 4under Section 8(c) r/w 21 and 29 of the NDPS Act has been provedbeyond any reasonable doubt. Point is answered accordingly.17. In fine, the appeal is partly allowed and thejudgement in C.C.No.631/1995 on the file of the Subordinate Judgefor NDPS Act case, Chennai, is hereby set aside as against A1to A4. A1 to A4 are convicted under Section 8 r/w 21 & 29 ofthe NDPS Act and sentenced each to undergo 10 years RI and to pay afine of Rs.1,00,000/-(Rupees one lakh) each indefault to undergoone year SI each. The appeal is dismissed as against A5 and A6.The Trial Judge is directed to secure A1 to A4 and send to prisonto undergo the sentence. This court place on record itsappreciation for the services rendered by the learned Amicus Curiaeand direct that a sum of Rs.10,000/- is to be paid to him by theState Legal Services Authority. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ssvTo, 1. The Special Court for the NDPS Act, Chennai.2. The Member Secretary,Tamilnadu State Legal services Authority,Chennai.1 cc to mr.R. Rajaratnam, Advocate, sr. 2820Crl.A.No.346 of 1998GB (CO)kk 22/1