M.A.Jaffar Ali v. The Intelligence Officer Narcotic Control Bureau South Zonal Unit Chennai 90

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 07.06.2010CORAMTHE HONOURABLE MR.JUSTICE T.SUDANTHIRAMCRL.A.NO.1169 of 2004M.A.Jaffar Ali ..Appellant/Accused 1versusThe Intelligence OfficerNarcotic Control BureauSouth Zonal UnitChennai 90 ..Respondent/ComplainantCriminal Appeal filed against the Judgment passed in C.C.No.207of 2002, on the file of the Principal Special Judge, Special Courtunder NDPS Act, Chennai, dated 10.8.2004.For Appellant : Mr.R.John SathyanFor Respondent : Mr.R. Dhanapal Raj Special Public Prosecutor for NDPS Cases.J U D G M E N TThe appellant herein is the first accused in C.C.No.207 of 2002,on the file of the learned Principal Special Judge, Special Courtunder NDPS Act Cases, Chennai, and he stands convicted for theoffences under Sections 8(c) read with 21(c) and Section 8(c) readwith 23 of the NDPS Act and sentenced to undergo ten years rigorousimprisonment and to pay a fine amount of Rs.1,00,000/- for eachoffence, in default, to undergo six months rigorous imprisonment foreach offence. Aggrieved by the said conviction and sentence, theappellant/first accused has preferred this criminal appeal.2.The case of the prosecution in brief is as follows:(i)On 21.01.2002 at about 7.00 p.m. P.W.3, IntelligenceOfficer, N.C.B., Chennai, received an information over telephonethat one person by name M.A.Jaffar Ali, was leaving to Colombu byI.C.573 Flight scheduled to departure at 12.40 hours on 21.01.2002and also carrying heroin weighing about 2.5 kilograms. P.W.3recorded the said information in Ex.P.11 and informed the AssistantDirector and thereafter proceeded along with other officers to Anna https://hcservices.ecourts.gov.in/hcservices/ International Airport. On verifying the passport of the accusedJaffar Ali, P.W.3 confirmed the first accused as the person who wasnamed in the information. P.W.3 enquired the first accused /appellant as to whether he had any narcotic substance for which thefirst accused replied that he had no such substance. P.W.8 anotherIntelligence Officer who had accompanied P.W.3 had issued summons tothe first accused under 67 of the NDPS Act. The Airlinesauthorities handed over the package of the accused with a letterEx.P.12. The first accused/appellant accompanied P.W.3 and otherofficers to the NCB Offfice. P.W.3 went to the CBI Office,Chennai and required the Inspector Ramadoss and Sub InspectorSaravanan to be witnesses. P.W.6 Sub Inspector of Police Saravananand the Inspector of Police Ramadoss appeared in the office of P.W.3at 3.00 p.m. In their presence P.W.3 explained to the first accusedabout Section 50 of the N.D.P.S Act and informed the accused that hehas got the right to be searched either before the learned JudicialMagistrate or before a Gazetted Officer for which the accused optedto be searched by the Intelligence Officer P.W.3 himself. The firstaccused also admitted that he concealed the heroin in the fallsbottom of two black recksin bags. He opened the falls bottom andproduced two polythene bags. Heroin was found inside the polythenebags and one packet contained 1.25 kgs and other pocket contained1.75 kgs. From each packet two samples of each weighing five gramswere taken and those sample packets were sealed. The remainingpackets were also sealed. Mahazar Ex.P.13 was prepared for seizureof the contraband. At about 7.30 p.m. P.W.8 recorded the confessionalstatement of the first accused which is marked as Ex.P.26. The firstaccused was arrested at 2.00 p.m. on 22.01.2002 and he was producedbefore the Court for remand. 3. On 08.06.2002, P.W.1 received an information from P.W.9-Inspector of Police Kothwalchavadi police station and then went tothe Police Station. On enquiring him, the second accused revealedthat he was called as Saleem and he also admitted that he hadconnection with the first accused in the drug trafficking. P.W.1served summons to the second accused and brought to the NCB Office.The statement of the second accused was recorded by P.W.2 which ismarked as Ex.P.4.4. The prosecution in order to establish its case, examinedP.Ws.1 to 9, marked Exs.P.1 to P.33 and produced material objectsM.O.1 to M.O.12. When the accused were questioned under Section 313Cr.P.C., with regard to the incriminating circumstances availableagainst them, they denied their complicity. The trial Court afteranalysing the evidence, acquitted the second accused and convictedand sentenced the first accused alone as stated above.5. Mr.R.John Sathyan, learned counsel appearing for theappellant/first accused submitted that though P.W.9 on informationgone to the Airport, he did not take any steps to search the first https://hcservices.ecourts.gov.in/hcservices/ accused at the Airport but conveniently P.W.3 says that the firstaccused was searched in the N.C.B. Office in the presence of twomahazar witnesses who were CBI Officials and not independentwitnesses. Ex.P.25 summons copy issued to the first accused carriesthe file number, which considerably proves that summons Ex.P.25 wasprepared subsequently and it could not have been issued to theaccused at the Airport as spoken by P.W.3 and P.W.8. 6. The learned counsel appearing for the appellant has furthersubmitted that even at the Airport, P.W.3 ought to have followed themandatory provisions under Section 50 of the NDPS Act but he failedto do so. The learned counsel appearing for the appellant furtheradded that Ex.P.26 confessional statement said to have been made bythe first accused is not a voluntary in nature and the trial Courthaving acquitted the second accused erred in convicting theappellant/first accused alone. 7. Per contra, learned Special Public Prosecutor submitted thatthough P.W.3 had gone to the Airport on a specific information, thefirst accused had denied the possession of any narcotic drug andtherefore he was issued summons and the first accused voluntarilyaccompanied P.W.3, the Intelligence Officer. The learned SpecialPublic Prosecutor further added that as the CBI Office was nearer tothe NCB Office, P.W.3 had gone to the CBI office, procured P.W.6 SubInspector of Police and the Inspector of Police to be the witnessesfor the search and seizure.8. The learned Special Public Prosecutor also submitted that thefirst accused has not retracted his confessional statement at theearlier stage and it stands as a corroboration to the seizure of thecontraband made by P.W.3.9. This Court considered the submissions made by both parties andperused the records. It is the specific evidence of P.W.3 that hereceived a specific information about the first accused that he wascarrying heroin weighing about 2 1/2 Kilograms and was to leave toColumbo by IC.573. P.W.3 having gone to the Airport with otherofficials and having noticed the first accused and after retrievingthe baggage of the first accused had enquired about the contrabandand the first accused had denied about the possession of thecontraband. Though the first accused had denied the possession ofany narcotic drug, as P.W.3 had specific information, it is not knownas to why P.W.3 had not searched the first accused and his baggage inthe Airport itself in the presence of the Airport authorities or anyother independent witness. P.W.3 ought to have explained aboutSection 50 of the NDPS Act on the same spot. But, surprisingly P.W.3 https://hcservices.ecourts.gov.in/hcservices/ or other officials have not searched the first accused at theairport. It is the evidence of P.W.3 and P.W.8 that the firstaccused was served summons under Section 67 of the NDPS Act and hewas taken to the NCB Office. But it is the evidence of P.W.3 evenbefore recording the statement of the first accused on the way he hadgone to the CBI Office to get the mahazar witnesses. This part ofthe evidence reveals that P.W.3 wanted to search the first accusedand if so, he could have done it at the airport itself. It is notknown as to why P.W.3 picked up the police personnel to stand asmahazar witness. Though there is no specific bar for the policepersonnel to stand as a mahazar witness, to inspire the confidence ofthis Court regarding the search and seizure, the Intelligence officershould have made an attempt to get some independent person to standas witness. P.W.3 in his report Ex.P.19 had stated that thecontraband was seized in the presence of two independent witnesses.The names of the independent witnesses are not mentioned in Ex.P.19,but it is to be understood that the Police personnel are referred tobe the independent witnesses. Further in the mahazar Ex.P.13, it isnot mentioned that the first accused was brought to the NCB Officeafter serving summons under Section 67 of the NDPS Act. In Ex.P.19also it is not explained as to why the first accused was not searchedat the airport after being intercepted. Though it is stated by P.W.3that the first accused had admitted about the possession of heroin inthe NCB Office, he himself had given evidence that the first accusedhad denied about the possession of the drug at the airport. Theaccused having been brought to the NCB Office on the basis of thesummons issued to him, if he had admitted his guilt, then hisstatement should have been immediately recorded, but according to theevidence of P.W.3 and P.W.8 at that stage, no statement was recordedand Ex.P.26 is said to have been recorded only at 7.30p.m.10. The manner in which the search and seizure was conducted byP.W.3 and the evidence let in by the prosecution regarding the searchand seizure does not inspire the confidence of this Court. Theaudacity of the NCB Officers is only seen by this Court by procuringthe police personnel as mahazar witness, but fair compliance ofSection 100 Cr.P.C is missing. 11. As Ex.P.25 summons issued by P.W.8 to the first accusedwhich carries the file number raises a doubt with regard to the timeof the issuance of summons to the first accused. Ex.P.25 is aprinted copy and the name of the Intelligence Officer Bakthavatchalamonly is handwritten. In the facts and circumstances of the case, thisCourt does not want to place any reliance in Ex.P.26, the statementsaid to have been given by the first accused. https://hcservices.ecourts.gov.in/hcservices/

12. For the above said reasons, the Criminal appeal is allowed.The conviction and sentence imposed on the appellant/first accused inC.C.No.207 of 2002, on the file of the learned Principal SpecialJudge, Special Court under NDPS Act, Chennai, are set aside and theappellant/first accused is acquitted of all the charges. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar.ksr To1. The Principal Special Judge, Special Court under NDPS Act, Chennai.2. The Superintendent, Central Prison, Chennai 3. The District Collector, Chennai4. The District General of Police, Mylapore, Chennai-600 004.5. The Intelligence Officer, Narcotic Control Bureau, South Zonal Unit, Chennai 90.6. The Special Public Prosecutor for NCB, High Court, Chennai.Crl.A.No.1169 of 2004GV (CO)RH (22.6.10)