Mr. S.M.A. Sudath Aloysius, Sri ... vs Narcotic Control Bureau And The ...
2002 Latest Caselaw 1074 Bom

JUDGMENT

1. The applicants are hereby assailing correctness, propriety and legality of the judgment and order of conviction and sentence passed against the appellants by Special Judge for Brihan Mumbai in Special Case N. 267 of 1999, wherein the learned Special Judge has convicted Alex Lesilie Eleneo (original accused No. 2), appellant Sivanesan Annadurai (original accused No. 3), appellant S.M.A. Sudath Aloysius for the offences punishable under Sections 29 r/w Section 8(c), 21, 23, 25 and 28 of Narcotic Drug and Psychotropic Substances Act 1985 (hereinafter referred to as Act for convenience). All these appellants and accused Alex have been sentenced to undergo rigorous imprisonment for 10 years each and to pay fine of Rs. one lac each, in default to undergo further rigorous imprisonment for three months.

2. These appellants were tried with M/s. Jayanti Krishna Reddy before the Special Judge but the said accused has been acquitted.

3. The prosecution case in brief can be stated as mentioned hereunder. The prosecution alleged that all these appellants, accused Alex and acquitted accused Jayanti K. Reddy hatched up a conspiracy of transporting heroin from India to Mauritius. As per the alleged plan, the appellant Aloysius was to travel from Mumbai to Mauritius and for that purpose had come to India in the month of April 1999, more particularly he arrived at Mumbai on 6th of April 1999. On 9th of April 1999 he visited Chennai, where he met accused Annadurai. He told accused Annadurai, that he was in need of a lady companion for going to Mauritius and for that he was ready to pay money. Accused Annadurai arranged for such a companion who was Jayanti Krishana Reddy-accused No. 1. At Chennai a person namely Vellu met them and Vellu handed over a gray colored bag to them and told that heroin was concealed in it. He advised accused Aloysius not to hold that bag on his person because, he was not Indian citizen. According to his suggestion the said bag was to be carried by Jayanti K. Reddy from Chennai to Mumbai. Accused Aloysius, accused Annadurai, accused Jayanti K. Reddy travelled from Chennai to Mumbai and stayed in hotel Diplomat near Ballard Pier for couple of days. As per prosecution case, accused Alex who happens to be resident of Kalyan met them. Accused Aloysius requested him to make arrangement for passport and visa for Jayanti K. Reddy who travelled from Mumbai to Mauritius. For that purpose he was paid Rs. 50,000/-.

4. The passport was prepared for Jayanti Krishana Reddy for going to Mauritius from Mumbai. Thereafter, as per prosecution case Aloysius went to Mauritius. On 28/4/1999 Jayanti K. Reddy, Annadurai, Alex went to Sahar International Air Port. Jayanti K. Reddy went inside the Air Port, got immigration stamp affixed on her passport, got all formalities completed so far as her departure to Mauritius was concerned but returned back on that ground that there were some problems in respect of immigration. Even as per prosecution case, on that date the luggage, which was checked in by Jayanti K. Reddy for the trip to Mauritius was not seized by police nor was taken back by Jayanti K. Reddy. The prosecution is silent on this point. The case which has been disclosed by the prosecution does not indicate anything as to what had happened to that luggage.

5. On 2/5/1999 Intelligence Officer Shri Dubey received information that one lady was to carry heroin from Mumbai to Mauritius and she was to ply for that purpose. Intelligence memo in that context was prepared by him and it was submitted before his superiors. Superiors approved his plan of intercepting said lady.

6. In the night of 3rd May, 1999 said Jayanti Krishana Reddy made entry in Sahar International Airport. Accused Alex and Annadurai bought as per prosecution case, the visitors ticket and they were waiting outside the Airport. When the bag was checked in, accused Jayanti K. Reddy was intercepted by P.W. 1 Ms. Kanta Tejwani, P.W.11 Asawale and P.W. 5 Mr. Narale. After intercepting said lady, P.W. Miss Kanta Tejwani called panch witnesses. Out of them panch witness P.W.5 Shrikant Pol has been examined. When enquiry was made by P.W. Kanta Tejwani with Jayanti K. Reddy, she produced her passport and travel documents. She informed that she has checked in baggage. P.W. Kanta Tejwani and her colleagues disclosed their identity to her and all of them went to baggage examination hall, where baggage for examination was kept. Accused No. 1 Jayanti K. Reddy identified her bag, which consisted of one medium size gray coloured Safari suitcase which was tallying with her air ticket. Her Air ticket was showing that she was to ply by Air Mauritius vide M.K.-755 from Mumbai to Mauritius. She had produced her boarding pass also which was showing her name as Krishna Reddy J.Ms. On enquiry she informed them that a suitcase was given to her by one person by name Alex Laseily. Said Alex had accompanied her uncle Annadurai and they were waiting outside. Jayanti K. Reddy was taken outside. She identified both of them and both of them were apprehended by said squad.

7. Prosecution case further shows that, after those two persons were apprehended, enquiry was made with accused No. 2 Alex who informed that he has given said gray coloured Safari suitcase to accused No. 1 Jayanti Krishana Reddy and same belonged to him. The said squad informed accused Nos. 1, 2 and 3 that they wanted to take search of the bag for suspected possession of narcotic drug. Therefore, they apprised accused Jayanti K. Reddy, accused Alex and accused Annadurai in respect of their right in view of Section 50 of the Act and informed them that, if they wished to be searched before a Magistrate or a Gazetted Officer, they could be taken before said persons. They also informed them that Shri C.P. Vajayadharan, Assistant Director, N.C.B. present was a Gazetted Officer. All of them preferred to be searched by the said squad before the panch witnesses.

8. Thereafter, as per prosecution case, accused No. 1 Jayanti Krishana Reddy opened the suit case by keys which she was having. The said suit case was containing personal effects of Jayanti Krishana Reddy. The said squad found that the said bag was abnormally heavy. Therefore, they asked the reason about that, but accused No. 1 showed her ignorance about that. However as per prosecution case, accused Alex informed that he was aware that heroin was kept concealed in the suitcase in top and bottom. Said suitcase case was opened by the help of hacksaw. The said portion was opened which was found containing gray coloured P.V.C.-sheet moulded to the original top and bottom, and it was containing two polythene packets containing light brown powder. Those polythene packets were opened and powder was collected. It revealed that it was heroin. It was weighing 1.540 kgs. Three samples of 5 grams each were taken in three small polythene packets and each packet was sealed. Remaining heroin was also seized. All the packet were sealed with the signatures of panchas on them. Kanta Tejwani took the personal search of accused Jayanti Krishana Reddy. She recovered small paper chits written in Telgu. Those chits were taken for investigation. The squad recovered 500/- U.S. dolloers from her. They were also seized. During the personal search of accused No. 2, one fax message from accused No. 1 to hotel in Mauritius for confirmation/reservation of the room was seized. Another fax message was seized from the possession of accused No. 1. It was from one hotel in Mauritius regarding confirmation of reservation of room for accused No. 1 Jayanti Krishana Reddy. Besides that, an entry ticket dated 3/5/1999 was seized. So also some chits were recovered from accused No. 2 bearing some telephone numbers and addresses. Some currency notes were also found. Passport, entry ticket dated 3/5/1999, one small telephone diary, one Indian Airlines differential fare slip from economy class to first class from Bombay to Chennai etc. were seized from the possession of accused No. 3. Rs. 800/- were also found in his possession. All these articles were seized under panchanama. The panchanama was signed by panch witnesses. As per prosecution case panch witness No. 2 explained contents of panchanama to accused No. 1 in Tamil language and the said panchanama bears an endorsement to that effect. The copy of the said panchanama was given to accused No. 1 to 3.

9. After panchanama a letter was written by Miss Kanta Tejwani for cancellation of immigration in respect of Jayanti K. Reddy. Seizure report was prepared and it was submitted to Superior i.e. Superintendent and Assistant Director as well as Zonal Director. The muddemal was handed over to the custodian N.C.B. along with a letter. Thereafter, a memo was sent to Chennai Police station for search of said Vellu. A reply came from Chennai Police, which disclosed that the house of said Vellu was sealed by the counterpart from Chennai as said Vellu was not found there. The material on record does not show that any further enquiry of the search was made for the purpose of arresting the said Vellu.

10. Statements of accused Nos. 1, 2, 3 and 4 were recorded and after completion of chargesheet, the appellants and co-accused Jayanti Krishana Reddy were put to trial before the Special Judge, who passed the order of conviction and sentence, which is the subject matter of the challenge in this appeal.

11. Shri Keshwani, Counsel appearing for appellant Aloysius, read the evidence in detail and submitted that the statement of appellant Aloysius, which has been shown to have been recorded by the investigating agency, is nothing but a concocted statement which was prepared to suit their purpose. He submitted that appellant Aloysius who is a national of Shri Lanka knows writing English and Hindi very well. When that was so, there was no necessity for him to make a request to the officers of investigating agency to write his statement. He submitted that, this aspect of investigation casts serious doubt about the credibility and reliability of the officers who were investigating and collecting evidence against said appellant and other appellants and acquitted accused Jayanti Krishana Reddy. He submitted further that there was no need of recording two statements of appellant Aloysius because, if at all a statement was to be recorded, all necessary interrogation could have been made at the first instance. He submitted further that the said statement seems to have been recorded on 5/5/1999 at 7 a.m. and if the evidence on record is considered as a whole, he was found sitting alone in the said office as stated by P.W.2 Jitendra Dubey. Shri Keshwani submitted that if the statement is read as a whole, it does not disclose anything inculpatory so far as said appellant is concerned. At the most what it shows is that he was in need of a female companion who could accompany him to Mauritius and therefore a request was made to that effect to appellant Annadurai who made the arrangement of such a female companion who was Jayanti K. Reddy. He submitted that a request was made to appellant Alex who made arrangement for her passport and visa.

12. Shri Keshwani submitted that passport, visa, immigration etc., of appellant Annadurai were completed before the end of March 1999 and therefore, there was no need for him to go to Chennai and make a request to appellant Annadurai and to come from Chennai to Mumbai along with Annadurai and Jayanti Reddy, if reality is to be assessed. According to him, he could not have been concerned with the part which has been attributed to appellant Annadurai, Alex and acquitted accused Jayanti K. Reddy, so far as the prosecution allegation in respect of transportation of narcotic drug from India to Mauritius is concerned. He further submitted that prosecution case is silent in respect of the earlier luggage which was, as per prosecution, with Jayanti K. Reddy when she had visited C.S.I. Airport for travelling to Mauritius and had checked-in her luggage. He pointed out that prosecution evidence is very much silent in respect of the question in respect of that baggage as to what had happened with it. It was neither seized by the officers of N.C.B., nor shown to have been taken by Jayanti K. Reddy nor shown to have been returned to her. He submitted that silence of prosecution on that point hampers the prosecution case so far as conspiracy is concerned.

13. Shri Keshwani submitted that considering the evidence as it is, even the appellant could not have been convicted for any offence, because, he was neither in possession of any incriminating article nor was connected in any way with appellant Annadurai, Alex or acquitted accused Jayanti K. Reddy. He submitted that the retracted statement of co-accused which has been recorded in view of the provisions of Section 67 of the Act cannot be the sole basis of conviction against the accused. Therefore, he prayed that the order of conviction and sentence passed against the appellant Aloysius be set aside and he be acquitted.

14. Shri Lala, Counsel appearing for appellant Annadurai, submitted that the statements of co-accused recorded in view of the provisions of Section 67 of the Act cannot be the basis of conviction. But in this case, both the appellants have been convicted on those statements alone, when those statements have been retracted at earliest possible opportunity. He submitted that the appellant Annadurai happens to be a lawyer. Therefore, there was no need for him to request the officers of N.C.B. to record his statement but it has been done so and that seriously casts suspicion about the credibility and truthfulness of the evidence of the officers of N.C.B. who have deposed in this case as prosecution witnesses. He submitted that Alex is also a person knowing English very well. Therefore, there was no need for him also to make a request to that effect. He submitted that Jayanti K. Reddy was the person who according to the prosecution case was in possession of the said bag which was seized by the police in this case, but she has been acquitted. he submitted that it is very much possible for any accused who has been found in possession of contraband articles to name any person for the purpose of escaping and exactly it seems to have been same case, if the prosecution case is considered as it is. He submitted that only because accused Jayanti K. Reddy pointed out the persons who were outside C.S.I. Airport, it cannot be said to be sufficient to hold that said persons were involved in the act for which the appellants were tried before the Special Judge. He submitted that those two appellants also need to be acquitted by setting aside the order of conviction and sentence passed against them.

15. Shri Nalavade, Counsel appearing for the Union of India and N.C.B., submitted that the statements of the appellants and Jayanti K. Reddy which have been recorded in view of provisions of Section 67 of the Act are on equal footing with the statements which are recorded in view of Section 108 and 135 of the Customs Act, 1962. He placed reliance on the judgment of Supreme Court in the matter of K.I. Pavunny v. Assistant Collector (HQ), Central Excise Collectorate, Cochin, , wherein Supreme Court held that when the statements have been recorded by Customs Officers in view of Section 107 and 135 of Customs Act, such statements can be used for the purpose of conviction if Court finds that they are recorded by statutory compulsion and when they have been given voluntarily by the accused pursuant to him appearing against summons or on surrender. Shri Nalavade submitted that the prosecution has proved that there was a conspiracy between appellant, Aloysius accused Alex, appellant Annadurai and Jayanti K. Reddy, when all of them conspired together to carry the said bag from Chennai to Mumbai in which heroin was stored in concealed compartments. He submitted that all the appellants were knowing that said bag was containing heroin and the said bag was to be carried by Jayanti K. Reddy. He submitted further that all the appellants have travelled with Jayanti K. Reddy from Chennai to Mumbai, stayed together in Hotel Diplomat and again and again stayed in hotel near C.S.I. Airport. Not only that but appellant Aloysius asked accused Alex to make available passport and visa for Jayanti K. Reddy for travelling from Mumbai to Mauritius. He submitted that Jayanti K. Reddy was caught in C.S.I. Airport with the said bag and as she pointed out the appellant Annadurai and Alex, they were caught outside the said Airport. He submitted that the statements of all appellants and said acquitted accused Jayanti Krishana Reddy make out a case for prosecution and if that evidence is considered the prosecution has provided the guilt of the appellants beyond reasonable doubt. He submitted that the prosecution has challenged the order of acquittal so far as Jayanti Krishana Reddy is concerned and therefore, the case of the appellant is not strengthened. He submitted that these appeals be dismissed.

16. Shri Shringarpure, Counsel appearing for the State of Maharashtra, justified the order of conviction and sentence and submitted that the appropriate legal order be passed, as this Court finds it necessary.

17. In view of the submissions advanced before this Court, following points will have to be considered very carefully.

(1) The statements of co-accused recorded in view of the provisions of Section 67 of N.D.P.S. Act. Section 67 of N.D.P.S. Act empowers any officer referred to in Section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with contravention of any provision of this Act--

(a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder:-

(b) require any person to produce or deliver any document or thing useful or relevant to the enquiry;

(c) examine any person acquainted with the facts and circumstances of the case.

18. Section 108 of the Customs Act provides that;

Sub-section (1) Any gazetted officer of customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making a connection with the smuggling of any goods.

Sub-section (2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things or a certain description in the possession or under the control of the persons summoned.

Sub-section (3) All persons so summoned shall be bound to attend either in person or by an authorised agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents and other things as may be required.

Provided that the exemption under Section 132 of the Code of Civil Procedure, 1908 (5 to 1908), shall be applicable to any requisition for attendance under this section.

Sub-section (4) Every such inquiry as aforesaid shall be deemed to be a judicial proceedings within the meaning of Section 193 and Section 228 of the Indian Penal Code (Section 45 of 1960) (emphasis provided).

19. Thus, a bare reading of these two sections clearly indicates that these two sections are not on equal footing. The learned Counsel for Union of Indian and N.C.B. is totally under a wrong impression on this point. Section 108 of the Customs Act authorises the concerned officer to record the evidence and in that context he is empowered to issue a summons to that effect, and the person to whom such summons has been issued has to attend the enquiry and has to state the information truthfully. No such obligation has been indicated by Section 67 of the Act. Furthermore, that enquiry is to be treated as judicial proceeding and the person committing default is liable to be proceeded in view of provisions of Section 193 and Section 228 of I.P.C. It is to be noted that summons it is to be issued for prosecuting the document / or documents which such person has to produce in view of the summons issued to him. In contrast Section 67 of the Act empowers an officer to record the statement of such person or persons for the purpose of collecting information about commission of any offence or contravention of any rule connected with the provisions of Act. Nowhere it has been indicated that said statement would be forming part the evidence. Section 67 has been enacted for the purpose of empowering such officers to collect the information and they are thereafter obliged to make independent investigation for the purpose of collecting evidence against the accused which can be used in trial as legal evidence. The tendency is growing amongst the concerned officers doing the work of investigation in context with the provisions of the Act, to record the statement of such concerned persons, as if those statements are confessions. Finding themselves insufficient in collecting the evidence in investigation they adopt their tricky devices to show that the accused made them request to write the statements for them, though the accused are well conversant with English or language in which such statement are recorded. In the present case, appellant Annadurai happens to be a lawyer practicing at Chennai; why he should request the concerned officer to record his statement in context with Section 67 of the Act?. Absolutely, this is unfair on the part of such investigating officers to make such show. they use such devices because they get an opportunity of couching such statements as if they are confessions. Furthermore, prosecution and persons concerned with prosecution go on harping under the wrong notion that such statements can alone be made the basis of conviction. It is not consistent with the Criminal Jurisprudence. On the contrary it spells out what has been deprecated by the Supreme Court in the case of State of Punjab v. Baldev Singh, etc.etc., , wherein the Supreme Court has pointed out that the trafficking in drug is detrimental to the society but even then the means of collecting evidence should be above board. Officers collecting material for going to the trial should follow the procedure laid down by the law and if they do not do so, the material which has been collected by them by following unfair means cannot be used for conviction in the trial. In paragraph 55 of the above cited said judgment Supreme Court has categorically pointed out its observation in that context in sub-para Nos. 3 and 4. The Supreme Court has said that remedy cannot be worst than the disease itself. The legitimacy of judicial process may come under cloud if the Court is seen to condone acts of lawlessness conducted by the investigating agency during search operations. Thus, this Court dismisses the submissions advanced on behalf of N.C.B. and Union of India to treat these statements at par with the statements which have been recorded in view of Section 108 of Customs Act, keeping in view the points mentioned below also.

20. It is further important to note that all the accused have retracted their statements. So far as appellant Aloysius is concerned his statements have been recorded twice. What was the necessity of recording two statements when the investigating agency was having sufficient opportunity to record statement with sufficient time. It has come in the evidence of P.S.I. Dubey, that appellant Aloysius was sitting in the office alone for more than six hours and his initial statement shown to have been recorded at 7 a.m., According to the evidence of Dubey he was sitting all alone on Sofa. It means that his statement has not been recorded at 7 a.m. but even then prosecution has shown that it was recorded at that time. When all formalities in respect of accused Annadurai were completed before the end of month of March 1999, what was the necessity for him to go to Chennai and to make request to Annadurai to make the arrangement for a female companion to go to Mauritius. A lawyer, why he should do all these thing and furthermore, come from Chennai to Mumbai when he was not in any way concerned with the drug trafficking as his occupation. Shri Nalavade has pointed out that appellant Aloysius, Annadurai and Jayanti Krishana Reddy stayed at hotel Diplomat and they were together. But that does not strengthen the prosecution case of a conspiracy of transporting narcotic drug from India to Mauritius. At the most both Annadurai and Aloysius can be blamed of immoral activities, but by no stretch of imagination they can be said to be involved in drug trafficking in the absence of any other independent evidence collected against them by the prosecution. Prosecution was unable to collect any such evidence. Therefore, prosecution is harping on the statements of accused as confessions, which have been already retracted.

21. Statements of accused recorded in view of Section 67 of the Act are forgetting the clue for further investigation or for going to the root for detecting the commission of the offence. It is the tool, device. It cannot take the place of confession or substantive, occult evidence given by a witness in the trial. And hence it cannot be the basis of conviction by itself.

22. Shri Nalavade has pointed out that there was some fax message one sent from Mumbai to Mauritius hotel and another from Mauritius hotel to Mumbai. But unfortunately, those fax messages are revolving around hotel reservation. Does it mean any involvement or the conspiracy of transporting narcotic drug from India to Mauritius? As prosecution case itself indicates, Jayanti Krishana Reddy was to go to Mauritius for acting in a tele-film. When that was so, Jayanti Krishana Reddy was bound to make enquiry about her reservation. There may be some other reason for appellant Annadurai to be with her. But that is not in any way concerned with the main allegation of the prosecution which is alleged in the present case. The retraction of the statements of the accused recorded in view of provision of Section 67 of the Act cannot be the basis for conviction of another co-accused simpliciter. One lame cannot carry another. Prosecution has to stand on its own feet. It cannot achieve conviction by limping on such crutches when it is without any independent evidence to prove its allegations.

23. The person who was found in possession of the luggage at C.S.I. Airport is Jayanti Krishana Reddy but she has been acquitted. She has pointed out appellant Annadurai and Alex who have been caught, who were standing outside the Airport. They were found possessing visitors passes. From this alone, it cannot be said that they were having nexus with the luggage, which was seized at the instance of acquitted accused Jayanti Krishana Reddy. The prosecution has to establish a strong nexus between narcotic drug and the accused. In this case prosecution has failed to achieve it in respect of the appellants.

24. The learned trial Judge has not considered these important facets of the matter and has without appreciating evidence, illegally passed the conviction on the retracted statements of co-accused recorded in view of provisions of Section 67 of the Act which is totally irrelevant with the allegations of the prosecution and finding of those two polythene bags stored in the said gray bag which was seized at the instance of acquitted accused Jayanti Krishana Reddy. Furthermore, it is important to note so far as this case is concerned, that the main person, Vellu has not been traced at all. Except writing a letter to Chennai, officers of N.C.B. have not done anything more to trace him and arrest and book him for the prosecution. In fact, if the prosecution case is considered as it is, Vellu has played an important role. The prosecution has not come with acceptable explanation as to why said Vellu has not been arrested and has not been booked as co-accused with all these accused. The learned trial Judge therefore, landed in error of recording the order of conviction and sentence against all these appellants. It will have to be set aside by allowing these appeals. Thus, all these appeals are allowed. The order of conviction and sentence recorded against the appellants stand set aside and they are acquitted. They be set at liberty, if they are not required for any other enquiry, offence or proceeding. They be also not released, if they are undergoing any sentence for any other offence. No interference so far as order of disposal of the property is concerned. The passport of appellant Aloysius be returned to him, if he is not required for any other enquiry, investigation, proceeding or trial. A xerox copy of passport well attested be retained on record. Criminal Application No. 1566 of 2002 stands dismissed as Shri Keshwani and Ayaz Khan are not pressing it.

The parties are directed to act upon the copy of this order duly authenticated by the Sheristedar of this Court.