Madras High Court
Intelligence Officer vs Rasool Mydeen on 16 September, 2022
Crl.A.Nos.147 & 356 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 23.08.2022
DATED : 16.09.2022
CORAM
THE HON'BLE Mr.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.A.Nos.147 and 356 of 2019
and
Crl.M.P.No.7960 and 3992 of 2019
Crl.A.No.147 of 2019:
Intelligence Officer
Narcotic Control Bureau
Chennai Zonal Unit
Chennai. .. Appellant
Vs
1. Rasool Mydeen
2. Amjath Khan @ Mathaiya .. Respondents
Crl.A.No.356 of 2019:
Rasool Mydeen .. Appellant
Vs
Intelligence Officer
Narcotic Control Bureau
Chennai Zonal Unit
Chennai - 90. .. Respondent
Prayer in Crl.A.No.147 of 2019 : This Criminal Appeal is filed under
Sections 377(2) and 378 of Code of Criminal Procedure, 1973, to set aside
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the order of acquittal of A1 Rasool Mydeen from all the charges u/s 8(c) r/w
Section 29, 8(c) r/w Section 23(c) and 8(c) r/w Section 28 of the NDPS Act
and A2 Amjath Khan @ Mathaiya from the charges under Section 8(c) r/w
Section 29, 8(c) r/w Section 23(c), 8(c) r/w Section 21(c), 8(c) r/w Section
28 and 8(c) r/w Section 27A of the NDPS Act and convict the accused A1
Rasool Mydeen under Section 8(c) r/w Section 29, 8(c) r/w Section 23(c)
and 8(c) r/w Section 28 of the NDPS Act and A2 Amjath Khan @ Mathaiya
for the charges under Section 8(c) r/w Section 29, 8(c) r/w Section 23 (c),
8(c) r/w Section 21(c), 8(c) r/w Section 28 and 8(c) r/w Section 27A of the
NDPS Act;
Prayer in Crl.A.No.356 of 2019 : This Criminal Appeal is filed under
Sections 374 of Code of Criminal Procedure, 1973, preferred against the
judgment made in C.C.No.21 of 2015 dated 11.09.2018 on the file of the
Principle Special Judge, Principle Special Court under EC & NDPS Act,
Chennai, convicting the appellant under section 8(c) r/w 21(c).
For Appellant in : Mr.N.P.Kumar
Crl.A.No.147 of 2019 Special Government Pleader
for NDPS Act cases
For Appellant in
Crl.A.No.356 of 2019 : Mr.G.Murugendran
For Respondents in : Mr.G.Murugendran
Crl.A.No.147 of 2019 for respondent 1
Mrs.Mamta Pandey
for respondent 2
For Respondent in : Mr.N.P.Kumar
Crl.A.No.356 of 2019 Special Government Pleader
for NDPS Act cases
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Crl.A.Nos.147 & 356 of 2019
COMMON JUDGMENT
On 03.10.2014, at around 5.00AM, P.W.1, namely Sumit Arya,
Intelligence Officer, NCB Chennai received a telephonic information that
one Rasool Mydeen, aged thirty years is engaged in drug trafficking and he
is coming from New Delhi to Chennai in the Tamil Nadu Express with 1kg
of Heroine and he has procured the same in collusion and conspiracy with
one Amjath Khan @ Mathaiya, who is also a resident of Ramanathapuram
District, and thereafter is coming to hand over the same to the said Amjath
Khan @ Mathaiya. P.W.1 reduced the said information into writing and
after due information and permission from the Superintendent NCB, along
with P.W.1, a team was formed and they reached the Central Railway
Station around 7.00AM and were waiting along with the witnesses and
about 7.30AM, the said Rasool Mydeen was identified and when the
identity cards were shown, the said Rasool Mydeen offered himself to be
searched by P.W.1 himself and upon further search, he handed over the
contraband in two polythene bags from his black color backpack bag. Upon
cutting open one of the bags and tested it for Heroine by using Drug
Detecting Kit, since the test answered positive, after weighing the
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contraband and taking the sample of 5gms each, prepared the mahazar,
completed the seizure formalities and handed over all the documents and
properties to the Investigating Officer P.W.3. Thereupon, P.W.3 effected a
formal arrest and sent the accused for remand and also handed over the
contraband for testing.
2. Thereafter, P.W.6 completed the collection of evidence and filed a
complaint against both the accused. The complaint was taken on file as
C.C.No.21 of 2015 on the file of the Principle Special Court under EC and
NDPS Act, Chennai and upon appearance and furnishing of copies under
Section 207 of the Code of Criminal Procedure, the Trial Court framed five
charges against both the accused under Sections 8(c)r/w Section 29, 8(c) r/w
Section 21(c), 8(c) r/w Section 28, 8(c) r/w Section 23(c) and 8(c) r/w
Section 27A of the Act. Upon being questioned, the accused denied the
charges and stood trial. Thereafter, to bring home the charges, on behalf of
the prosecution, P.W.1 to P.W.8 were examined and Exhibit P.1 to Exhibit
P.71 were marked and M.O.1 to M.O.6 were also produced. Upon being
questioned about the material evidences and the incriminating circumstances
on record, the accused denied the same as false. Thereafter, no evidence was
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let in on behalf of the defence. The Trial Court therefore proceeded to hear
learned Special Public Prosecutor on behalf of the prosecution and learned
counsel for the accused and by a judgment dated 11.09.2018, acquitted the
second accused of all the charges and acquitted the first accused for the
charges under Sections 8(c) r/w Section 29, 8(c) r/w Section 28 and 8(c) r/w
Section 23(c) of the NDPS Act, while convicting him for the charge under
Section 8(c) r/w Section 21(c) of the NDPS Act alone and sentenced him to
undergo ten years rigorous imprisonment and to pay a fine of Rs.1lakh and
in default of payment of fine, to undergo further rigorous imprisonment for a
period of two years.
3. Aggrieved by the conviction for the sole charge as mentioned
above, the first accused namely Rasool Mydeen has preferred Crl.A.No.356
of 2019. Aggrieved by the acquittal of the second accused in total and the
first accused in respect of the other charges, the Intelligence Officer has filed
Crl.A.No.147 of 2019. As such, both the appeals are taken up together and
are disposed off by this common judgment.
4. Heard Mr.G.Murugendran, learned counsel appearing on behalf of
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the appellant in Crl.A.No.356 of 2019 and for the first respondent in
Crl.A.147 of 2019 and Mrs.Mamta Pandey, learned counsel appearing on
behalf of the second respondent in Crl.A.No.147 of 2019 and
Mr.N.P.Kumar, learned Special Public Prosecutor appearing on behalf of the
prosecution in both the appeals.
5. Mr.G.Murugendran, learned counsel would first submit that
P.W.6 being the Intelligence Officer, under Section 42 of the NDPS Act,
unless an officer is authorised by the Central Government, he is not
competent to file a complaint. The Central Government had originally in
S.O.No.763(E) dated 27.09.1989 and thereafter, in S.O.No.3900(E) dated
30.10.2019, had authorised the officers of and above the rank of the
Inspectors in the Narcotics Bureau. Therefore, the Intelligence Officers not
being above the rank of the Inspectors, are not entitled to file a complaint.
Learned counsel would further submit that from the contradiction in the
evidence of P.W.1, it is clear that the information as such received by him is
not reduced into writing and therefore, Section 42 of the Act is also not
complied with. He would further submit that the accused in this case was
not searched before a Gazetted Officer / Magistrate, even though the
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personal search was done, and therefore, the mandatory provisions
contained under Section 50 of the Act has not been complied with. In view
of non compliance of Section 42, it goes without saying that the Section 57
of the Act is not complied with.
6. Learned counsel further pointing out the discrepancies in the
evidence of P.W.1 and P.W.3 would submit that there are material
contradictions in respect of the foundational facts to be proved by the
prosecution. The Nodal Officer is not at all examined and there is no finding
regarding the commercial quantity. He would submit that the entire Central
Railway Station is under CCTV surveillance and the production of the
CCTV footage is the best evidence possible and in spite of the knowledge
which is demonstrated in the cross examination, if the prosecution has not
produced the best evidence available, then, the accused should be given the
benefit of doubt.
7. In support of his contentions regarding non compliance of Section
42 of the Act, learned counsel for the appellant relied upon the judgment of
the Hon'ble Supreme Court in Kuluttumottil Razak vs State of Kerala 1 and
1 2000 4 SCC 465
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State of Rajastan vs Babu Lal2. In support of his proposition that Section
50 of the Act is violated, learned counsel relied upon the judgments of the
Hon'ble Supreme Court in State of Rajastan vs Gopal 3, K.Mohanan vs
State of Kerala4, Dilip and another vs State of MP5. He would rely upon
the judgment in State of Rajastan vs Parmanand and another 6 for the
proposition that if the prosecution has failed to comply with the Section 57
of the Act and that when it causes prejudice, the same would be fatal.
Learned counsel would rely upon the judgment in Thandi Ram vs State of
Haryana7 for the proposition that all the incriminating circumstances should
have been properly put to the accused under Section 313 of the Code of
Criminal Procedure. Learned counsel relied upon the judgment in Mohan
Singh vs Prem Singh and another 8 for the proposition that if there was
delay in the contraband being produced before the Court then the same
would be fatal to the prosecution. Learned counsel relied upon the judgment
in State of Rajastan vs Gurmail Singh9 for the proposition that in this case,
there is no independent witness and the CISF witnesses has deposed in a
2 2009 14 SCC 215
3 1998 8 SCC 449
4 2000 10 SCC 222
5 2007 1 SCC 450
6 2014 5 SCC 345
7 2000 1 SCC 318
8 2002 10 SCC 236
9 2005 3 SCC 59
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manner so as to contradict the other witnesses and that therefore, in the
absence of the independent witnesses, the seizure should not be held to be
proper. Learned counsel relied upon the judgment in Krishan Chand vs
State of Himachal Pradesh10, more specifically paragraph 24 to 26 for the
proposition that the expert evidence in this case as unreliable. Learned
counsel also relied upon the judgment of the Hon'ble Supreme Court in
Tomaso Bruno and another vs State of Uttar Pradesh11.
8. Per contra, Mr.N.P.Kumar, learned Special Public Prosecutor
would submit that, in this case, Section 42 has been complied with as the
information has been reduced into writing and is produced before the Trial
Court as Exhibit P.1. The same was duly forwarded to the superior officer
and he has also made an endorsement in the same and therefore, Section 57
of the Act is also complied with. In this case, the contraband is seized from
the bag and therefore, the mandate of the Section 50 of the Act need not be
complied. The learned Special Public Prosecutor would submit that the
cumulative reading of the evidence of P.W.1, P.W.3 and P.W.5, it will not
reveal any material contradiction, but only the minor discrepancies which
10 2018 1 SCC 222
11 2015 7 SCC 178
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will not entitle the accused for acquittal. He would submit that the
Intelligence Officer is competent and is specifically authorised by the Central
Government in this regard. He would submit that it is for the prosecution to
bring home the charges and it is not necessary at all times that the CCTV
footage should be produced when the prosecution has proved the charges,
otherwise, by examination of witnesses and production of documents.
Therefore, he would submit that the Trial Court has rightly convicted the
first accused for conscious possession of the contraband for the offence
under Section 8(c) r/w Section 21(c) of the NDPS Act. He would submit that
the Trial Court has issued only minimum sentence and therefore, the same
does not call for any interference.
9. Arguing further on the appeal against acquittal, he would submit
that apart from the confession statements, the prosecution has also produced
the call details between the first and the second accused by which it is
proved that on the day of commission of offence, there has been calls back
and forth between the accused and therefore would submit that the
prosecution in this case has proved the offences even as against the second
accused beyond reasonable doubt and the arrest of the second accused at the
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Airport and recovery of the tickets, which is also produced, all clearly prove
the offence against the second accused and as such the other charges against
the first accused should also be held as proved. Therefore, he prayed that the
appeal filed by the first accused to be dismissed and the appeal filed by the
Intelligence Officer be allowed.
10. Mrs.Mamta Pandey, learned counsel appearing on behalf of the
second accused in Crl.A.No.147 of 2019 would submit that, in this case,
except the confession statement, there is no other material to connect the
second accused. As a matter of fact, the Constitutional Bench of the Hon'ble
Supreme Court of India in Tofan Singh vs State of Tamil Nadu12 has held
that even the NCB Officers are deemed to be Police Officers and therefore,
any statement given before them would be hit by Section 161 of the Code of
Criminal Procedure and therefore, now the Constitutional Bench has
answered the reference in favour to the second accused, nothing else
remains to be decided in this case and the appeal against acquittal is to be
dismissed.
11. She would further submit that even though some of the call details
12 2014 6 SCC (Cri) 196
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have been produced admittedly, the sim card was not standing in the name
of the second accused and the prosecution has not done anything to prove
that the said sim card is used by the second accused or the second accused
had any connection with the person, in whose name the sim card was
standing. Even the tower location was not obtained and therefore, the
prosecution has not done anything by producing the call details. She would
submit that the said fact also has been dealt with in detail by the Trial Court
while acquitting the accused.
12. I have considered the rival submissions made on behalf of either
side and perused the material records of this case.
13. As far as the first contention of Mr.G.Murugendran, learned
counsel is concerned, it is useful to extract the S.O.763(E), which reads as
follows:
“S.O.763(E):- In exercise of the powers conferred by
clause (d) of sub-section (i) of Section 86A of the
Narcotic Drugs and Psychotropic Substance Act, 1985
(61 of 1985), the Central Government hereby
authorizes the officers of and above the rank of
Inspector in the Department of Customs, Central
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Excise, Narcotics, Revenue Intelligence, Central
Economic Intelligence Bureau and the Narcotics
Control Bureau under the Ministry of finance,
Government of India for filing of complaints relating
to an offence under the said Act before Special
Courts.”
similarly, S.O.3900(E) also reads on the same lines, which is as follows:
“S.O.3900(E):- In exercise of the powers conferred by
clause (d) of Sub-Section (1) of Section 36A of the
Narcotics Drugs and Psychotropic Substances Act,
1985 (61 of 1985) and in supression of the
notification of the Government of India in the Ministry
of Finance, Department of Revenye number
S.O.763(E), dated 27th Sepctember, 1989, published
in the Gazette of India, extraordinary, Part II, Section
3, Sub-Section (ii), except as respects things done or
omitted to be done before such suppression the
Central Government, hereby authorises the officers of
and above the rank of inspectors in the Central Board
of Indirect Taxes and Customs, Central Bureau of
Narcotics, Directorate of Revenue Intelligence,
Central Economic Intelligence Bureau and of and
above the rank of Junior intelligence Officer in
Narcotics Control Bureau for filling of complaints
relating to an offences under the said Act, before
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Special Courts.”
Therefore, it is clear on the plain reading of the S.O that the officers of the
rank of Inspectors and above the rank of inspectors, both are authorised for
filing complaint. Learned counsel's submission that the above S.O. would
only mean any officer above the rank of Inspector, is on the face of it
unacceptable and therefore, the Intelligence Officer, being in the rank of the
Inspectors and having been duly authorised, are fully competent to file a
complaint and therefore, the submission of the learned counsel for the first
accused in this regard is rejected.
14. Learned counsel for the first accused, by pointing out the
discrepancies in the oral testimony of P.W.1 that he answered that the
person who called him was available in the office when he entered the office
at 5.00AM and therefore, he would not have received the Exhibit P.1
statement over phone and therefore, the correct information which is
obtained is not reduced into writing and therefore, Section 42 is violated.
Cumulative reading of the entire Exhibit P.1 and the answer given in the
cross examination, can at best be termed as discrepancy in the evidence of
P.W.1. The person had given the information over phone and he also
thereafter came to the office in person and thus, when the said information is
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reduced into writing and is duly submitted to the superior officer, it cannot
be said that there is violation of Section 42 of the Act. Accordingly, when
Exhibit P.1 has been reduced into writing and the same has been forwarded
to the superior officer and when the superior officer had also made an
endorsement on the same, authorising P.W.1 to take action, I hold that the
mandatory provision under Section 42 of the NDPS Act is complied with.
15. The next submission of the learned counsel that the mandatory
provision under Section 50 of the NDPS Act is not complied with is
concerned, already by relying upon the latest ruling of the Supreme Court of
India in Dayalu Kashyap vs The State of Chhattisgarh13, this Court itself in
Crl.A.No.831 of 2019, after considering all the other earlier
pronouncements had taken the view that even if there is a personal search, if
the recovery of the contraband is not from the person of the accused, then
the rigor of Section 50 will not apply. Therefore, the submission of the
learned counsel that Section 50 is not complied with is without any
substance. Again for the same reasons mentioned supra for non compliance
of the Section 42 of the Act, the argument of the learned counsel for the first
accused in respect of Section 57 of the Act is also fallacious in as much as
13 2022 Live Law (SC) 100
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the said provision is duly complied with.
16. Learned counsel for the first accused pointed out the
contradictions in the evidence of P.W.1, P.W.3 and P.W.5. The
contradictions are regarding explaining the mandate of Section 50 in Tamil,
which has been held to be not mandatory and as such is not material in
nature. The other contradictions are in the nature of the time of P.W.1
entering his office, again P.W.3 coming to Central Station from the office
and reaching back to the office, etc. The same are relating to the details of
the process of investigation and after efflux of time, it is natural that there
will be discrepancies / inaccuracies. But, the same cannot be taken as
material contradiction. Even in respect of the independent witnesses, being
the Uniform Forces employed in the Central Railway Station, the material
contradiction is alleged only with reference to the compliance of Section 50.
Again, the same has been held to be not mandatory and therefore, I hold that
the discrepancies pointed out by the learned counsel are not material in
nature and accordingly stand rejected.
17. Though the prosecution could have also produced the CCTV
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footage from the Central Railway Station, the very absence by itself will not
entitle the accused for acquittal. The principle that non-production of the
best evidence in the case of the prosecution could not be employed, as the
CCTV cannot be said to be a best evidence when the seizing officer and the
witnesses have deposed and the mahazar is produced and the CCTV
footage can at best be termed as a corroborative material. Therefore, the
mere non-production thereof will not entitle the appellant for an acquittal.
Thus, I am unable to persuade myself to uphold the very many contentions
made on behalf of the first accused in this case.
18. On the contrary, the contraband being of a commercial quantity,
that is 1kg of Heroine, was duly recovered and from the evidence of P.W.1
the seizing officer, P.W.2 the chemical analysis expert, P.W.3 the other
Intelligence Officer who proceeded to conduct further investigation, P.W.4
the superior officer, P.W.6 the complainant, P.W.7 the Sub-Inspector of
Railway Police Force who stood as an independent witness for the seizure,
the seizure of the contraband has been duly proved and the mahazar in
Exhibit P.2 clearly demonstrated the seizure and accordingly, the conscious
possession of the contraband by the first accused is proved beyond
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reasonable doubt. In that view of the matter, the various decisions relied
upon by the learned counsel would not apply to the fact situation of the
instant case. Therefore, I hold that the Trial Court has rightly convicted the
first accused for the offence under Section 8(c) r/w Section 21(c) of the Act.
19. Now, coming to the acquittal of the second accused and acquittal
of the other accused in respect of the other charges, it may be seen that the
entire recovery is from the first accused. There are only two materials
against the second accused in this case. First is the statement recorded by
the NCB Officers, which now stand inadmissible in view of the judgment of
the Hon'ble Supreme Court of India in Tofan (supra). The only other
evidence to connect the second accused with the offence is the seizure of the
Airplane ticket and the production of the call details. As far as the call
details is concerned, the Trial Court has duly considered the same and has
arrived at the finding that the prosecution miserably failed in this case to
prove that the alleged telephone number, which stood in the name of a third
party is being used by the second accused and the identity of the third party
neither ascertained nor the said third party was examined to prove the action
of the second accused. Even the tower details were not taken so as to at least
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connect with the Tiruchi Airport, where the second accused has said to have
been arrested.
20. The Trial Court has also noted down the discrepancy, manner of
arrest and timing of arrest of the second accused and has given a finding of
acquittal. It cannot be said that the view of the Trial Court is not at all a
possible view and therefore, in the appeal against acquittal, especially when
the materials are very scarce, this Court cannot reverse the findings of
acquittal into one of guilt and therefore, once there is no material to connect
the second accused, the other offences against the first accused also stand
not proved and accordingly I find no infirmity in the judgment of the Trial
Court in acquitting the second accused and also acquitting the first accused
in respect of the other offences.
21. Accordingly, the appeal against acquittal filed by the Intelligence
Officer fails. In view thereof, both the criminal appeals shall stand
dismissed.
Index:Yes/No 16.09.2022
Speaking/Non-Speaking Order
drm
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D.BHARATHA CHAKRAVARTHY, J.
drm
To
1. Intelligence Officer
Narcotic Control Bureau
Chennai Zonal Unit
Chennai - 90.
2. The Principle Special Judge
Principle Special Court under EC & NDPS Act, Chennai.
3. The Public Prosecutor, High Court of Madras.
Crl.A.Nos.147 and 356 of 2019
and
Crl.M.P.No.7960 and 3992 of 2019
16.09.2022
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