Nowshad v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 06.01.2012CoramTHE HONOURABLE MS. JUSTICE K.B.K.VASUKICrl.A.No.281 of 2010Nowshad .. Appellant/Accused Vs.State byThe Intelligence Officer,Narcotics Control BureauSouth Zonal Unit, Chennai. .. Respondent/ComplainantPrayer:-Criminal Appeal is filed under Section 374(2) of CriminalProcedure Code against the judgment dated 9.4.2010 made in C.C.No.317of 2004 on the file of the Principal Special Court under EC and NDPSAct, Chennai.For Appellant : M/s.T.K.Sampath AssociatesFor Respondent: Mr.Balasubramanian, APPJ U D G M E N TThe appeal is filed by the appellant/accused against hisconviction for the offences under sections 8(c) r/w 29, 21(c) and 30of the Narcotic Drugs and Psychotropic Substances Act, 1985(hereinafter shortly referred to as 'NDPS Act'). 2.The case of the prosecution is that PW1-Intelligence Officer,NCB, Chennai received a telephonic information as if on 10.7.2004Saturday one Amudha @ Gomathi brought heroin from Mumbai and she wasplanning to transport it Arab countries and she used one Nowshad ofKozhicode of Kerala for concealing the same in a suit case and oneAbdul Kareem Hayaz of Kozhicode of Kerala to smuggle it from Chennaito Saudi Arabia and both of them were staying in Room No.105, MeenaGuest House, Gulam Murthusha Street, Ellis Road, Mount Road, Chennaiand the said Amudha @ Gomathi got about 2.500 kg of heroin concealedin a big black suit case and handed it over to Sait Abdul KareemHayaz at 12.00 noon to be smuggled to Chennai to Saudi Arabia andBoth Abdul Kareem Hayaz and Nowshad along with suit case were stayingin Room No.105, Meena Guest House, Mount Road, Chennai and AbdulKareem Hayas was likely to leave to Saudi Arabia in one or two days. 3.According to the prosecution, on receipt of the same, PW1recorded the same and submitted Ex.P1 report to PW5 Gunabalan,Superintendent, NCB, Chennai and PW5 on going through the same,discussed the same with his Intelligence Officers i.e.,PW1/Karthikeyan, PW8/Muruliseshu and one Sivakumar and Sankarkumar https://hcservices.ecourts.gov.in/hcservices/ and instructed PW1 and PW8 Muraliseshu to proceed with furtherinvestigation. Thereafter, PW5-Superintendent, PW1 Karthikeyan andMuruliseshu along with other NCB officers had been to R.No.105 MeenaGuest House at 5.30 pm and verified the register and ascertained thestay of Abdul Kareem Hayaz in particular room and they requestedPW7/S.M.Sheik Dawood, who is the owner of the Guest House andS.Abubakar Siddique, who is one of his employees to be independentwitnesses and all of them had been to R.No.105, where they foundAbdul Kareem Hayaz and the accused and they informed them about thesearch proposed to be held in the room and they also informed themabout their right to be searched in the presence of nearby JudicialMagistrate or any gazetted officer and the inmates of the roomoffered themselves to be searched by the officials and they revealedtheir identity as Abdul Kareem Hayas and Nowshad and furnished theparticulars of their names etc. When they were questioned about thepossession of any narcotic drugs, Abdul Kareem Hayaz took out onesuit case from below the cot and opened it and removed heroin fromthe secret cabin at the bottom of the suit case and they surrenderedtwo packets containing brown colour powder. When the same was testedwith kit, it was ascertained as heroin and PW1 seized both thepackets and weighed the same to be 1.500 kg and 1.260 kg (totally2.760 kg) and PW1 drew sample of 5 grams each from both the packetsand put the samples in separate brown colour paper cover and sealedit with office seal and sealed the balance quantity as P1 and P2 andmarked two sets of samples as S1 and S2 and S3 and S4 respectivelyand also marked the suit case seized as P3. Thereafter, Abdul KareemHayaz was searched and Ex.P4 mobile phone and cash of Rs.13,800/-,pass port and additional booklet, driving licence, air tickets, ICICIBank credit cards, HDFC Bank card and Standard Charted Bank card andPan card were seized from him, Rs.1,950/- cash and a railway ticketwere seized from the accused Nowshad under Ex.P2 to Ex.P11 seizuremahazars.4.Thereafter, both Abdul Karee Hayaz and Nowshad were issuedwith Exs.P13 and P14 summons to appear at NCB office at 11.30 pm on10.7.2004 and they appeared before NCB office and they wereentrusted to and enquired by PW2 Murugesan and PW4 Mukundan and allthe seized articles thereafter entrusted to PW8 Muraliseshu on11.7.2004 and PW1 also sent Ex.P14 Section 57 report to his higherofficial on 12.7.2004. In the mean while, both Abdul Kareem Hayaz andNowshad appeared before PW2 and PW4 respectively and gave Exs.P15 andP20 voluntary confession statements in their own hand writing and thesame were signed by PW2 and PW4 and they were arrested under Exs.P16and P21 arrest memos and thereafter, they were handed over to PW8-Murali Seshu for remand and PW2 and PW4 also sent Ex.P17 and Ex.P22Section 57 reports to PW5-Gunabalan, Superintendent. Thereafter, PW8Intelligence Officer produced both the accused along with seizedproperties to the concerned Judicial Magistrate and the accused wereremanded to judicial custody and confined in Central Prison and PW8forwarded seized articles along with Ex.P23 memo to godown andobtained Ex.P24 godown receipt. PW8 sent Exs.P46 and P47 telegrams tothe family members of the accused and PW8 further submitted Ex.P49requisition along with Ex.P48 memo to send the samples S1 and S3 forchemical examination to Customs House Laboratory, Chennai and the https://hcservices.ecourts.gov.in/hcservices/ same was handed over to PW6 Murugan and after obtaining permission,the same was sent for chemical examination along with Ex.P50 coveringletter. PW3/Saraswathi, Chemical Examiner received the same from theforensic science department and acknowledged the receipt of the sameunder Ex.P18 test memo and after holding due analysis, handed overEx.P19 report to PW8 Murali seshu and sent the samples used for testto the court concerned. 5.In the mean while, PW6 Murugan, Intelligence Officer sentEx.P36 requisition to Kozhikode Central Excise Office for holding thesearch of the houses of both the accused and also addressed Exs.P26to 29 letters to the bank officials of ICICI, HDFC and Standardchartered bank and also Manager of Gulf Airways and the AssistantCommercial Manager, Southern Railways, Chennai and Exs.P31 to 33 arethe reply letters along with annexure received from StandardChartered Bank, HDFC and Southern railway and Ex.P37 and P38 are thereply letters with mahazar received from Central Excise Office,Kozhikode and Mallapuram, Tiruvandrum and PW6 also issued Exs.P39 andP41 summons to PW7 Sheik Dawood and Abu Becker, who are the mahazarwitnesses, who appeared before PW6 and gave Exs.P40 and P42 voluntaryconfession statement along with ledger extract relating to MeenaGuest House and photos of both the accused. PW6, after completinginvestigation, filed Ex.P43 complaint against all the accused i.e.,Abdul Kareem Hayaz, Nowshad and Amudha @ Gomathi on 30.12.2004. 6.During pendency of the case before the Sessions Judge, thecase against absconding accused Abdul Kareem Hayaz and Amudha @Gomathi is separated and against Nowshad in C.C.No.317 of 2004.7.The prosecution, in order to prove the guilt of the accused,examined the Superintendent and his team of intelligence officers,who received information, conducted raid in Room No.105 Meena GuestHouse, searched and seized the articles from the accused and arrestedthe accused and the Investigation Officer, who conducted theinvestigation and filed complaint and the owner of Meena Guest Houseand the Chemical Examiner as PW1 to PW8 and produced informationreport, mahazars for articles seized from both the accused, Section57 reports, summons issued to the accused, voluntary confessionstatement of the accused as well as the owner of the Guest House andhis worker, arrest memo, forwarding memo, godown receipt and othermaterial documents collected in the course of investigation andchemical examination report as Exs.P1 to P50, besides, MO1 to MO10,contraband, suit case, reliance mobile phone, cash of Rs.13,800/- andRs.1,950/- as material objects. 8.The trial court on the basis of the available records, foundthe accused guilty of the offences under Section 8 (c) r/w 29, 21(c) and 30 of NDPS Act for having conspired with Amudha and AbdulKareem Hayaz to transport heroin and for receiving the contrabandpacked and kept in the secret place created in the suit case and forhis being in possession of the same along with Abdul Kareem Hayaz inhis room and convicted and sentenced him for the offence. Aggrievedagainst the same, the accused preferred this appeal before thiscourt. https://hcservices.ecourts.gov.in/hcservices/

9.Heard the rival submissions made on both sides.10.In this case, the learned counsel for the appellant attackedthe correctness of the finding of conviction mainly on two groundsviz., (i) the act allegedly committed by the accused amounts to anact of preparation punishable under Section 30 and (ii) there is nomaterial to implicate him in the act of conspiracy and in the act ofpossession of contraband. It is further stated by him that none ofthe prosecution side witnesses deposed about either custody orseizure of the contraband by this accused with full knowledge and theaccused was in the course of 313 questioning, not questioned abouthis being the member of conspiracy and any of his acts amounts toonly preparation of the offence. The learned counsel for theappellant/accused has also cited the following judgments in supportof his contention: (i) AIR 1975 SC 175 (Sia Ram and another v. Stateof U.P (ii) 2005 (6) Supreme 323 (Amarsingh Ramjibhai Barot v. Stateof Gujarat) (iii)2009 (1) Drugs cases (Narcotics) 231 (Inspector ofCustoms, Akhoor J & K v. Yash Pal and another (iv) 2009 (1) Drugscases (Narcotics) 489 (Rajesh v. State of Kerala) (v) unreportedjudgment of our High court dated 11.8.2010 in Crl.A.No.294/2009 (TSJ)(S.Mahendra Kumar @ Mahendran v. State rep. by the IntelligenceOfficer, Narcotics Control Bureau, South Zonal Unit, Chennai (vi)unreported judgment dated 9.8.2011 in Crl.A.No.446 of 2010 (TMJ)(Sakthivel v. State by Inspector of Police, NIB CID, Salem (vii)unreported judgment dated 18.6.2010 in Crl.A.Nos.61 and 192 of 2009(TSJ) (Aulan Marikkar Mohammadu Hafar and another v. the Intelligenceofficer, Narcotic Control Bureau, South Zone Unit, Chennai-90.11.Before going into the prosecution case on merits as to whatis the act allegedly committed by the present accused and as towhether the same amounts to conspiracy, abetment or preparation, thefirst objection to be considered herein is the object of examiningthe accused under Section 313(1)(b) Cr.P.C. and the manner of suchexamination. It is dealt with by the Supreme Court in the judgmentreported in 2009 (1) Drugs Cases (Narcotics) 231 (Inspector ofCustoms, Akhnoor J & K v. Yash Pal and another), wherein, the SupremeCourt had an occasion to deal with the object and purpose ofintroducing Section 342 of Old Code of Criminal Procedure or Section313 of the present Code of Criminal Procedure. The Hon'ble Apex courtin para 20 dealt with Section 313 questioning of the accused andobserved that 'the object is for the purpose of enabling the accusedpersonally to explain any circumstances appearing in the evidenceagainst him' and referred to the earlier judgment of the SupremeCourt reported in AIR 1963 SC 612 (Jai Dev v. State of Punjab) aboutthe manner of examination of the accused in compliance of Section 313Cr.P.C. The observation of the Supreme Court in AIR 1993 SC 612 isextracted as follows:"The ultimate test in determining whether ornot the accused has been fairly examined underSection 342 would be to inquire whether, havingregard to all the questions put to him, he did getan opportunity to say what he wanted to say inrespect of prosecution case against him. If it https://hcservices.ecourts.gov.in/hcservices/ appears that the examination of the accused personwas defective and thereby a prejudice has beencaused to him, that would no doubt be a seriousinfirmity".The Hon'ble Supreme Court in the decision reported in 2009 (1) DrugsCases (Narcotics) 231, following the principle laid down in theearlier judgment observed that 'the provision is mainly intended tobenefit the accused and corollary to benefit the court in reachingfinal conclusion.12.The Supreme Court has as early as in the judgements reportedin AIR 1963 SC 612 and 2009 (1) Drugs Cases (Narcotics) 231 discussedthe material aspects relating to section 313 questioning, suchas, (a)the object of examination of an accused as to whether it isbeneficial for the accused or not, (b)whether the personal appearanceof the accused for answering the questions is necessary (c)whetherany other mode of extracting his answer can be adopted (d)what is theevidentiary value that can be attached to any statement made by theaccused either orally or in writing in the course of such questioningand (e)the nature of the obligations cast upon the Court in thisregard. The Supreme Court has in this regard laid down the followingprinciples: (i) the object of examination of the accused is for thepurpose of enabling the accused personally to explain anycircumstances appearing in the evidence against him (ii) it is mainlyintended to benefit the accused and corollary to benefit the Court inreaching the final conclusion (iii) it is not intended to nail him toany position, but to comply with the most salutary principle ofnatural justice enshrined in the maxim audi alteram partem (iv) thepersonal appearance of the accused can be dispensed with in summonscases involving less serious offences and it is obligatory on thepart of the Court to insist for his personal appearance in respect ofother cases whether instituted on police report or otherwise. InSummons cases, the pleader can answer the charge, but the pleadercannot do, what the accused can do personally. (v) The court is underthe special exigencies, such as, the accused is unable to reach theCourt except by bearing huge expenditure or unable to travel the longjourney due to physical incapacity or some other hardship, relievinghim from such hardship and at the same time, shall adopt such ameasure to comply with the requirements under Section 313 of the Codein a substantial manner as indicated in the judgments reported in2000 (8) SCC 740 Basav Raj R Patil v. State of Karnataka and 2008 (8)SCC 447 Keya Mukherjee v. Magma Leasing Ltd. and others). (vi) Theaccused can exercise such a right by way of written statements andthe court is obliged to treat such statement as part of the record(vii)if the court fails to put the needed question under clause (b)to Section 313(1) of the Code, it would result in a handicap to theaccused and any evidence or circumstances about which he was notoffered an opportunity to explain, cannot be used against him. (viii)The omission if any does not ipso facto vitiate the proceedings andprejudice occasioned by such defect must be established by theaccused and in the event of evidentiary material not being put to theaccused, the court must ordinarily eschew such material fromconsideration. (ix) It is also open to the appellate court to call https://hcservices.ecourts.gov.in/hcservices/ upon the counsel for the accused to show what explanation the accusedhas as regards the circumstances established against him, but not putto him. (x) If the accused is unable to offer the appellate court anyplausible or reasonable explanation of such circumstances, the courtmay assume that no acceptable answer exists. The explanation offeredby the counsel of the accused at the appellate stage is held to be asufficient substitute for the answers given by the accused himself. 13.In the present case, the perusal of the records reveal thatthere is absolutely no examination of the accused regarding any actof conspiracy, abetment and preparation and the entire questioning isonly about the manner of raid held by the officials, outcome of thesame and the manner of the investigation and nothing else and thereis no specific question regarding any specific act of the accused,which amounts to act of either conspiracy, abetment or preparation.However, the learned counsel for the appellant in the instant case isgiven an opportunity to explain the same and the same hence amountsto substantial compliance of Section 313 Cr.P.C. 14.Regarding the finding of conviction on facts, the contrabandwas not admittedly seized from the accused and the same was seizedonly from the custody of other absconding accused by nameAbdul Kareem Hayaz from the lodge room. The only incriminatingmaterial available herein is his presence along with A3 in the lodgeand his so called confession statement produced as Ex.P20. Theaccused admittedly retracted his Ex.P20 statement as early as on22.7.2004 i.e. within 10 days from the date of alleged recording ofsuch statement and on 11.12.2009 during Section 313 questioning. Theretracted statement in writing before Principal Sessions Judge dated22.7.2004 is, at the instance of the learned counsel for theappellant, summoned from among the lower court records to this Court.The perusal of the same reveals that it is duly received by the Courton 27.7.2004. In both the retracted statements, it is specificallystated by the accused that he belongs to Kerala and he does not knowany other language except Malayalam to read and write and thestatement was prepared in English and he was compelled to sign thesame. It is revealed from the evidence of PW1/Karthikeyan andPW4/Mukundan/Investigation Officers and PW5, Superintendent that theraiding party, prohibition and enforcement wing reached the lodge atbefore 5.30 pm on 10.7.2004 and searched and seized contraband andother articles as per Ex.P2 seizure mahazar and completed the same at10.30 pm and the accused as well as the seized contraband along withIntelligence Officers were returned to NCB office and this accusedwas served with Ex.P13 summon, as per which, he was summoned toappear before PW1 at 11.30 pm on 10.7.2004 and he was retained in NCBoffice till next day morning and Ex.P20 statement was purportedlygiven by him voluntarily from 6 am on 11.7.2004 and he was on thebasis of the same arrested on 11.00 am on 11.7.2004. The abovestatement would reveal that the accused was from 11.30 pm on10.7.2004 till he was reported to be arrested at 11.00 am on11.7.2004 in the custody of Intelligence officers and he was confinedin NCB office and was not allowed to leave the premises, as such, thepossibility of exercising compulsion and force upon the accused toobtain one such statement cannot be ruled out. The same, if viewed in https://hcservices.ecourts.gov.in/hcservices/ the light of the period during which the retracted statement was madeand the allegations raised in the same would go to probablise thedefence regarding non-voluntary nature of the statement. There is noexplanation forth coming on the part of Investigation officers topostpone the arrest till next day when the contraband seized wasalready tested and ascertained to be narcotic in nature. Such courseadopted by the Investigation officers to postpone the arrest withoutsufficient reason is, as rightly pointed out by the learned counselfor the accused, only for the purpose of extracting forced statementfrom the accused.15.Further, even assuming Ex.P20 statement is voluntary innature, the same would not make out any act of conspiracy andabetment on the part of the accused. The statement proceeds as if hewas only asked to pack and conceal the heroin in the suit case and hewas paid Rs.5,000/- to Rs.10,000/- for packing and after completingthe job assigned to him, he left the guest house to go to bus stopand as he could not get any bus to Kerala, he booked a train ticketto go to Kerala and came back to the guest house and stayed withother accused and at that time, the officers came and they offeredthemselves for search, seizure etc. But the same would not amount toan act of conspiracy. The statement does not reveal any prior act ofconspiracy or any other act on his part to constitute abetment asdefined under the relevant provisions of Indian Penal Code. An act ofconspiracy is defined under Section 120-A, as an agreement betweentwo or more persons to do or cause to be done any illegal act or anact which is not illegal by any illegal means. In this case, there isno particulars furnished and no material produced to prove that allthe three accused had at any time before 10.7.2004 met and discussedwith each other to do any illegal act or any other act by illegalmeans, so as to attract the provisions of Section 120-A. 16.An act of abetment is defined under Section 107 IPC, as perwhich, the person abets the doing of a thing under threecircumstances, (i) when he instigates to do any thing or (ii) heengages with one or more other person or persons in any conspiracyfor the doing of that thing, if an act or illegal omission takesplace in pursuance of that conspiracy and in order to the doing ofthat thing or (iii) intentionally aids by any act or illegalomission, the doing of that thing. Here is the case, wherein none ofthe ingredients as above stated are made out against the accused.There is no consensus of mind among all the three accused or anysharing of common intention by them to do any act in contravention ofprovisions of NDPS Act, as such, the present accused cannot be heldto be one of the conspirants or one of the aspirants for thecommission of main offence i.e. transport of narcotic drugs andPsychotropic substances, as such, the observation of the SupremeCourt in the judgment reported in AIR 1975 SC 175 and 2005 (6)Supreme 323 (cited above) and the observations of the learned brotherjudges in the unreported judgments referred to above, are squarelyapplicable to the facts of the case. Thus, the finding of convictionfor the offences under Sections 8(c) r/w 29 NDPS Act cannot beallowed to sustain. https://hcservices.ecourts.gov.in/hcservices/

17.It is noteworthy to mention at this juncture that the chargesframed against the accused are only for an act of conspiracy, custodyof contraband and for packing and concealing the same in thesuitcase. There is absolutely no material to bring home the guilt ofthe accused for the charges 1 and 2. As far as the third charge isconcerned, the only incriminating substance to establish the same isvoluntary confession statement and the voluntary nature of the sameis seriously challenged and the ground on which the same is underchallenge is now found to be well founded. Even otherwise, the singleact of packing and concealing it in the suit case for single paymentof Rs.5,000/- amounts to an act of preparation under Section 30, theminimum punishment prescribed for the same is one half of the maximumterm of imprisonment and fine prescribed for the main offence. Inthis case, the accused has been in confinement for nearly 7 ½ yearsand the same is more than one half of the maximum term for anyoffence under section 8(c). Viewing from any angle, the appellantcannot be any longer confined in imprisonment. Thus, for thediscussion held above, the judgment of conviction of the accusedcannot be allowed to sustain.18.In the result, the appeal is allowed by setting aside thejudgment of conviction and sentence dated 9.4.2010 made in C.C.No.317of 2004 on the file of the Principal Special Court under EC and NDPSAct, Chennai and the appellant/accused is acquitted from the charges.The appellant is directed to be set at liberty, if his detention isnot required in connection with any other case. The bail bond, ifany, executed by the accused shall stand cancelled and the fineamount, if any, paid by the accused shall be refunded to him. Sd/ Asst.Registrar //True Copy// Sub.Asst.RegistrarTo1.The Principal Special Court under EC and NDPS Act, Chennai.2.The Intelligence Officer, Narcotics Control Bureau South Zonal Unit, Chennai.3.The Public Prosecutor, High court, Madras.4.The Superintendent, Central Prison, Puzhal, Chennai.1 CC to Mr.T.K.Sampath, Advocate, S.R.No.1440Crl.A.No.281 of 2010TRM (CO)JJM 03.10.2013