Kerala High Court
Intaelligence Officer1 vs Ibramsha on 1 April, 2025
Crl.Appeal Nos.733 and 734 of 2006
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 1ST DAY OF APRIL 2025 / 11TH CHAITHRA, 1947
CRL.A NO. 733 OF 2006
AGAINST THE JUDGMENT DATED 07.09.2005 IN SC NO.185 OF
2005 OF SPECIAL COURT (NDPS ACT CASES), THIRUVANANTHAPURAM.
APPELLANT/COMPLAINANT:
INTELLIGENCE OFFICER,
NCB, RIU, TRIVANDRUM.
BY ADV R.VINU RAJ, SPL. P. P. NARCOTICS CONTROL
BUREAU
RESPONDENT/ACCUSED NO.5:
SULFIKAR @ ALIYAS SULFI,
AGED 28 YEARS,
R/O. AZHEEM MANZIL,
KUNNATHUKOPPAM,
NEDUMANGAD.
BY ADV D.KISHORE
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
26.03.2025, ALONG WITH CRL.A.734/2006, THE COURT ON
01.04.2025 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.733 and 734 of 2006
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 1ST DAY OF APRIL 2025 / 11TH CHAITHRA, 1947
CRL.A NO. 734 OF 2006
AGAINST THE JUDGMENT DATED 07.09.2005 IN SC NO.185 OF
2005 OF SPECIAL COURT (NDPS ACT CASES), THIRUVANANTHAPURAM.
APPELLANT/COMPLAINANT:
INTAELLIGENCE OFFICER,
NCB, RIU, TRIVANDRUM.
BY ADV R.VINU RAJ, SPL. P. P. NARCOTICS CONTROL
BUREAU
RESPONDENT/ACCUSED NO.1:
IBRAMSHA
AGED 50 YEARS,
S/O.LATE RAJAK,
R/O. NO.6, VELAYUDHAN STREET,
KAMARAJ NAGAR,
HARIYAMANGALAM,
TANJORE ROAD,
TRICHY-8, TAMIL NADU.
ADV.SREELAKSHMI SABU, STATE BRIEF.
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
26.03.2025, ALONG WITH CRL.A.733/2006, THE COURT ON
01.04.2025 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.733 and 734 of 2006
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C.S.SUDHA, J.
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Crl.Appeal Nos.733 and 734 of 2006
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Dated this the 1st day of April 2025
JUDGMENT
Crl.Appeal No.733/2006 filed under Section 378(2)
Cr.P.C., the appellant, who is the complainant in
S.C.No.185/2005, namely, the Intelligence Officer, Narcotic
Control Bureau (NCB), RIU, Thiruvananthapuram, on the file of
the Special Judge for trial of cases under the NDPS Act Cases,
Thiruvananthapuram, challenges the acquittal of the fifth accused
for the offence punishable under Section 8C read with Section
21(c), 23(c), 25, 28 and 29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (the Act). Crl.Appeal
No.734/2006 under Section 377(2) Cr.P.C., has also been filed by
the complainant in the aforesaid case seeking enhancement of the
sentence of the first accused in the case.
2. The prosecution case is as follows - on
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27/09/2004 at about 06:00 p.m., PW1, the Intelligence Officer
attached to the Revenue Intelligence Unit, NCB,
Thiruvananthapuram, received secret information that A2 Ajmal
from Chennai; A3 Badusha from Nedumangad and A4 Meeran
from Ramanadu in Tamilnadu have conspired to procure about
300 grams of heroin for the purpose of exporting the same to
Maldives through a carrier by concealment in his body in the form
of capsules. The information which PW1 got was that the drug
would be carried by A1 Ibramsha from Trichi in his abdomen and
that he would reach the International Airport at
Thiruvananthapuram for his onward journey to Maldives on
28/09/2004 by Indian Airlines flight. Accordingly, the officials of
NCB kept surveillance at the airport and at about 09:30 a.m., A1
arrived at the Airport. The officials approached A1 and on
questioning he admitted the carriage of drugs in his abdomen in
the form of capsules. He was taken to the Medical College
Hospital, Thiruvananthapuram to retrieve the swallowed capsules.
X-ray was taken and the carriage of drugs in the abdomen in the
form of capsules was confirmed. Medicines were administered to
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A1 for the purpose of evacuating the capsules and accordingly as
many as 64 capsules were recovered from his stools. The contents
of all the 64 capsules were separated. The content weighed 255
grams. Using the field drug detection kit, the officials tested the
drug and confirmed that it was heroin. A1 was discharged from
the hospital and his statement under Section 67 of the Act was
recorded as per which he confessed that he had been lured by the
other accused in the case for carrying of drugs to Maldives. A1
was arrested on 28/09/2004.
3. The confession by A1 revealed the involvement
of A5 Sulficar in the criminal conspiracy relating to drug
trafficking. Accordingly, A5 was summoned to the office of the
NCB on 29/09/2024 and his statement under Section 67 of the Act
recorded. A5 also admitted his involvement in the criminal
conspiracy and hence he was placed under arrest on 30/09/2004.
The investigation conducted revealed the involvement of A1 to
A5 in the crime and hence final report was filed alleging the
commission of the offences punishable under Sections 21(c),
23(c), 28 and 29 of the Act.
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3.1. A2 to A4 were reported to be absconding and
hence could not be arrested or produced before the trial court.
The first and the fifth accused were in custody since the date of
their arrest and hence the trial court proceeded with the trial of the
case against them. After complying with the necessary formalities
contemplated under Section 207 Cr.P.C., the trial court framed a
charge against the first accused under Sections 21(c), 28 and 29 of
the Act and under Sections 28 and 29 of the Act against the fifth
accused, which was read over and explained to the accused
persons to which they pleaded not guilty.
4. On behalf of the prosecution, PW1 to PW9 were
examined and Exts.P1 to P27 and MO.1 to MO.8 were marked.
After the close of the prosecution evidence, the first and the fifth
accused were questioned under Section 313(1)(b) Cr.P.C. with
regard to the incriminating circumstances appearing against them
in the evidence of the prosecution. A1 and A5 denied those
circumstances and maintained their innocence. A1 admitted his
arrest by the NCB officials at the International Airport,
Thiruvananthapuram on 27/09/2004 and the evacuation of 64
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capsules from his abdomen at the Medical college hospital,
Thiruvananthapuram. However, he denied having given any
voluntary statement to the officials of NCB under Section 67 of
the Act. A1 submitted that he was completely unaware of the
contents of the capsules which he was made to swallow by others.
He swallowed the capsules as he was made to believe that they
contained diamonds. He further stated that he was running a tea-
shop and that he was offered a sum of ₹15,000/- and an air-ticket
to Maldives for the carriage of the capsules in his abdomen. It is
also his case that he had signed the statement under Section 67 of
the Act under threat by the NCB officials. A5 stated that he was
summoned to the NCB office at Thiruvananthapuram, where he
was manhandled by the officials and made to sign a statement.
According to him, he has no involvement whatsoever in the
crime. He also submitted that while he was in judicial custody, he
filed a statement retracting the confession that he is alleged to
have given to the NCB officials.
5. As the trial court did not find it a fit case to
acquit the accused persons under Section 232 Cr.P.C., they were
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asked to enter on their defence and adduce evidence in support
thereof. No oral evidence was adduced by the accused persons.
The retracted confession statement of A5 has been marked as
Ext.D1.
6. On a consideration of the oral and documentary
evidence and after hearing both sides, the trial court did not find
any evidence to find A5 guilty of the offences punishable under
Sections 28 and 29 of the Act and hence he was acquitted under
Section 235(1) Cr.P.C. However, A1 has been found guilty of the
offence punishable under Sections 21(b) of the Act and hence he
has been sentenced to rigorous imprisonment for a period of 5
years and to a fine of ₹25,000/- and in default, to rigorous
imprisonment for six months. Set off under Section 428 Cr.P.C.
has been granted. The case against A2 to A4 was split up and
refiled as S.C.No.1013/2005. Aggrieved, the complainant has
come up in appeal.
7. The points that arise for consideration in this
appeal are - (i) Whether there is any infirmity in the finding of
acquittal of appellant/A5 in Crl.A.No.733/2006 by the trial court ?
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(ii) Whether the sentence imposed on the appellant/A1 in
Crl.Appeal No.734/2006 is liable to be enhanced ?
8. Heard both sides.
9. The prosecution relies on the confession
statement of A5 to find him guilty of the offence alleged against
him. In the light of the dictum in Tofan Singh v. State of Tamil
Nadu, (2021)4 SCC 1 : 2020(6) KHC 111, the confession
statement is inadmissible in evidence. In the said decision it has
been held that the officers who are invested with powers under
Section 53 of the NDPS Act are "police officers" coming within
the meaning of Section 25 of the Evidence Act, as a result of
which any confessional statement made to them would be barred
under Section 25 of the Evidence Act, and hence cannot be taken
into account in order to convict an accused for an offence under
the NDPS Act. That being the position, there is no infirmity in the
findings of the trial court. Hence Crl.Appeal No.733/2006 is
liable to be dismissed.
10. The appellant/complainant in Crl.Appeal
No.734/2006 is aggrieved by the finding of the trial court that the
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prosecution failed to establish that the contraband seized from the
appellant was commercial quantity. A1 was found guilty for
possession of contraband of intermediate quantity and hence a
sentence of five years has been imposed. The trial court in
paragraph no.17 of the impugned judgment refers to the reason
why the prosecution case that the appellant/A1 was in possession
of 250 gms, was not accepted. The trial court found that the
materials on record showed that the weight taken by the NCB
officials of the contraband was not foolproof. The possibility of
the contraband weighing less than 250 gms could not be ruled out.
In the said circumstances it was concluded that the prosecution
was able to succeed in only proving the offence punishable under
Section 21(b) of the Act by A1. On going through the testimony
of PW1, the detecting officer, and the other material prosecution
witnesses in whose presence the contraband had been weighed, it
appears that the evidence regarding the actual weight or the
accurate weight has not come on record. A reading of the
testimony shows that the possibility of variation in the total
weight cannot be ruled out. The Act provides for stiff sentences.
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Stiffer the sentence, stiffer is the proof required. This test has not
been satisfied in this case by the prosecution and hence I find no
infirmity in the findings of the trial court.
In the result, both the appeals are dismissed.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
Jms
