Madras High Court
Y.V.Nagaraj vs State By on 29 March, 2023
Criminal Appeal Nos.464 of 2017, 114 & 138 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.03.2023
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
Criminal Appeal Nos.464 of 2017, 114 & 138 of 2018
Crl.A.No.464 of 2017
Y.V.Nagaraj
S/o.Y.Subba Rao ... Appellant/Accused
Vs.
State by
Intelligence Officer,
Narcotics Control Bureau,
Chennai Zone, Chennai.
(N.C.B F.No.8/1/3/94-NCB/MDS) ... Respondent/Complainant
Prayer : Criminal Appeal filed u/s.374 (2) of the Code of Criminal
Procedure r/w 36(B) of Narcotic Drugs and Psychotropic Substances Act
against the judgment passed by Special Judge, I Additional Special Court
for NDPS Act Cases, Chennai - 600 104, in C.C.No.36 of 1995, dated
27.07.2017.
For Appellant : Mr.B.Kumar, Senior counsel
for Mr.R.Rajan
For Respondent : Mr.N.P.Kumar
Special Public Prosecutor
1/14
https://www.mhc.tn.gov.in/judis
Criminal Appeal Nos.464 of 2017, 114 & 138 of 2018
Crl.A.No.114 of 2018
Intelligence Officer,
Narcotic Control Bureau,
Chennai Zonal Unit,
Chennai. ... Appellant/Complainant
Vs.
Y.V.Nagaraj
S/o.Late Y.Subba Rao ... Respondent/Accused
Prayer : Criminal Appeal filed u/s.377(2) of the Code of Criminal
Procedure against the judgment passed by Special Judge, I Additional
Special Court for NDPS Act Cases, Chennai - 600 104, in C.C.No.36 of
1995, dated 27.07.2017.
For Appellant : Mr.N.P.Kumar
Special Public Prosecutor
For Respondent : Mr.B.Kumar, Senior counsel
for Mr.R.Rajan
Crl.A.No.138 of 2018
Intelligence Officer,
Narcotic Control Bureau,
Chennai Zonal Unit,
Chennai. ... Appellant/Complainant
Vs.
1.Y.V.Nagaraj
S/o.Late Y.Subba Rao
2/14
https://www.mhc.tn.gov.in/judis
Criminal Appeal Nos.464 of 2017, 114 & 138 of 2018
2.K.Suresh
S/o.Kannan
3.D.Kannan
S/o.Duraisamy ... Respondents/Accused
Prayer : Criminal Appeal filed u/s.377(2) and 378 of the Code of Criminal
Procedure against the judgment passed by Special Judge, I Additional
Special Court for NDPS Act Cases, Chennai - 600 104, in C.C.No.36 of
1995, dated 27.07.2017.
For Appellant : Mr.N.P.Kumar
Special Public Prosecutor
For Respondent : Mr.B.Kumar, Senior counsel
for Mr.R.Rajan
*****
COMMON JUDGMENT
As all these appeals arise out of one and the same judgment, they are
considered and decided by this common judgment.
2. Crl.A.No.464 of 2017 has been filed by the appellant [A2] against
the judgment and order passed by the Special Judge, I Additional Special
Court for NDPS Act Cases, Chennai - 600 104, in C.C.No.36 of 1995, dated
27.07.2017, convicting and sentencing the appellant in the following
https://www.mhc.tn.gov.in/judis
Criminal Appeal Nos.464 of 2017, 114 & 138 of 2018
manner:
Sl. Convicted for offence Sentence
No. u/s.
1. 8(c) r/w 29 of NDPS 10 years rigorous imprisonment and to pay
Act fine of Rs.1,00,000/-, in default, to undergo 2
years imprisonment.
2. 8(c) r/w 20(b)(ii)(B) of 10 years rigorous imprisonment and to pay
NDPS Act fine of Rs.1,00,000/-, in default, to undergo 2
years imprisonment.
3. 8(c) r/w 23(b) of 10 years rigorous imprisonment and to pay
NDPS Act fine of Rs.1,00,000/-, in default, to undergo 2
years imprisonment.
4. 8(c) r/w 25 of NDPS 10 years rigorous imprisonment and to pay
Act fine of Rs.1,00,000/-, in default, to undergo 2
years imprisonment.
The above sentences were ordered to run concurrently.
3. Crl.A.No.114 of 2018 has been filed by Narcotic Control Bureau
[hereinafter referred to as 'NCB'] questioning the judgment and order passed
by Special Judge, I Additional Special Court for NDPS Act Cases, Chennai -
600 104, in C.C.No.36 of 1995, dated 27.07.2017, insofar as the sentence
imposed against the respondent [A2] for various offences and seeking for
enhancement of sentence.
https://www.mhc.tn.gov.in/judis
Criminal Appeal Nos.464 of 2017, 114 & 138 of 2018
4. Crl.A.No.138 of 2018 has been filed by NCB questioning the
judgment and order passed by Special Judge, I Additional Special Court for
NDPS Act Cases, Chennai - 600 104, in C.C.No.36 of 1995, dated
27.07.2017, insofar as acquitting A5 and A6 from all charges.
5. The NCB filed a complaint on 08.03.1995 alleging that an
information was received by the NCB Zonal Unit at Chennai through the
Drug Liaison Officer, Customs and Excise, Mumbai, stating that Israeli
Police have seized approximately 2918 kgs. of Hashish. The same was said
to be transported through a container which reached Port Ashdode, Israel.
The consignment was shipped by M/s.V.J.Exports, which contained 180
cartons of vacuum flasks and it was purportedly shipped to M/s.Import
Export International Marketing, Tel Aviv.
6. Pursuant to the information received by the Zonal Unit at Chennai,
the officers of the NCB started the investigation and searched various
premises and seized the incriminating documents. While undertaking this
https://www.mhc.tn.gov.in/judis
Criminal Appeal Nos.464 of 2017, 114 & 138 of 2018
exercise, the NCB found that nearly nine accused persons were involved in
trafficking of Hashish and Mandrax tablets in various places in India
between the period April'1992 and March'1994 and it was sent to countries
like Israel, South Africa, Dubai, etc. For this purpose, fictitious companies
were also floated.
7. The further case of the prosecution is that the accused persons
entered into a criminal conspiracy and had procured nearly 2918 kgs. of
Hashish. The same was stored in a rented premise in Kotturpuram, Chennai.
This was packed in the vacuum flasks and was sealed and sent in a
consignment to Israel.
8. The complaint was filed by the NCB against the accused persons
and the same was taken cognizance by the trial Court u/s.36(A)(d) of the
Narcotic Drugs and Psychotropic Substances Act [hereinafter referred to as
'NDPS Act']. The copies of the documents and the complaint were furnished
to the accused persons u/s.208 Cr.P.C. On finding prima facie materials,
https://www.mhc.tn.gov.in/judis
Criminal Appeal Nos.464 of 2017, 114 & 138 of 2018
charges were framed against A1 u/s.8(c) r/w 29, 8(c) r/w 20(b)(ii), 8(c) r/w
23, 8(c) r/w 25 and 8(c) r/w 27-A of the NDPS Act. Insofar as A2 to A4 are
concerned, charges were framed u/s.8(c) r/w 29, 8(c) r/w 20(b)(ii), 8(c) r/w
23 and 8(c) r/w 25 of the NDPS Act. Insofar as A5 and A6 are concerned,
charges were framed u/s.8(c) r/w 29 and 8(c) r/w 20(b)(ii) of NDPS Act.
When the charges were put to the accused persons, the same were denied.
9. A1 was absconding and hence, the case was split up. A3 and A4
died during the pendency of the trial and hence, the charges against them
abate. The case was effectively contested by A2, A5 and A6.
10. The prosecution examined PW-1 to PW-20 and marked Exs.P1 to
P199 and identified and marked MO-1 and MO-2. The incriminating
evidence that was gathered during the course of trial was put to the
appellant [A2] and A5 and A6 when they were questioned u/s.313(1)(b)
Cr.P.C. and they denied the same as false.
https://www.mhc.tn.gov.in/judis
Criminal Appeal Nos.464 of 2017, 114 & 138 of 2018
11. The trial Court, on considering the facts and circumstances of the
case and on appreciation of oral and documentary evidence, came to a
conclusion that the prosecution has made out a case beyond reasonable
doubts as against A2 and accordingly, convicted and sentenced the appellant
[A2] in the manner stated supra. Aggrieved by the same, the appellant[A2]
has filed Crl.A.No.464 of 2017 and the NCB has filed Crl.A.No.114 of 2018
seeking for enhancement of sentence. The trial Court also found that the
prosecution has failed to establish the charges against A5 and A6 and
accordingly, acquitted them from all charges. Challenging the same, the
NCB has filed Crl.A.No.138 of 2018.
12. Heard Mr.B.Kumar, learned Senior Counsel, appearing for
appellant [A2] and Mr.N.P.Kumar, learned Special Public Prosecutor,
appearing for NCB.
13. Learned counsel appearing on either side made elaborate
submissions touching upon the merits of the case by pointing out to the
https://www.mhc.tn.gov.in/judis
Criminal Appeal Nos.464 of 2017, 114 & 138 of 2018
evidence of the witnesses and the documents that were relied upon by the
prosecution.
14. Before delving upon the issues that were raised on either side, this
Court wanted to ascertain as to whether the trial Court had dealt with all the
issues raised on merits. If the trial Court had dealt with all the issues and
had come to a conclusion, this Court would have proceeded further to deal
with this appeal on its own merits after re-appreciating the oral and
documentary evidence available on record. However, on carefully going
through the judgment of the trial Court, it is seen that the trial Court has
reached a final conclusion purely based on the confession made by the
appellant u/s.67 of the NDPS Act by relying upon the judgment of the Apex
Court in Kanhaiyalal v. Union of India [(2008) 4 SCC 668]. Accordingly,
the appellant has been convicted and sentenced for various offences under
the NDPS Act.
https://www.mhc.tn.gov.in/judis
Criminal Appeal Nos.464 of 2017, 114 & 138 of 2018
15. Learned counsel for the appellant [A2] and learned Special Public
Prosecutor appearing on behalf of NCB touched upon various documents
relied upon by the prosecution and also the oral evidence of the witnesses
and had put forth their contentions, apart from the confession recorded from
the appellant u/s.67 of the NDPS Act. In fact, the trial Court had also
recorded the various contentions that were put forth by learned counsel
appearing on either side. However, the judgment confined itself only to the
confession recorded u/s.67 of the NDPS Act.
16. There was a subsequent development after the judgment was
passed in the year 2017. The Larger Bench of the Apex Court in Tofan
Singh v. State of Tamil Nadu [(2021) 4 SCC 1] re-visited the entire law on
the issue and in particular, decided the vexed question as to whether a
conviction can be based solely on the confession recorded u/s.67 of the
NDPS Act and it was answered at paragraph No.158 as follows:
"158. We answer the reference by stating:
158.1. That the officers who are invested with powers under
Section 53 of the NDPS Act are "police officers" within the meaning
of Section 25 of the Evidence Act, as a result of which any
https://www.mhc.tn.gov.in/judis
Criminal Appeal Nos.464 of 2017, 114 & 138 of 2018
confessional statement made to them would be barred under the
provisions of Section 25 of the Evidence Act, and cannot be taken
into account in order to convict an accused under the NDPS Act.
158.2. That a statement recorded under Section 67 of the
NDPS Act cannot be used as a confessional statement in the trial of
an offence under the NDPS Act."
17. In the light of the above development, the judgment passed by the
trial Court purely based on the confession statement by relying upon the
judgment in Kanhaiyalal [supra], becomes unsustainable since it was
overruled and on this ground alone, the judgment passed by the trial Court
is liable to be set aside and the matter has to be necessarily remanded back
to the trial Court to deal with all the other issues on merits and render its
findings.
18. This Court consciously did not line up the other grounds that were
raised on either side touching upon the merits of the case and render any
finding since it will have a bearing and it will be a stumbling block for the
trial Court to independently deal with the issues on its own merits and in
accordance with law.
https://www.mhc.tn.gov.in/judis
Criminal Appeal Nos.464 of 2017, 114 & 138 of 2018
In the result, these criminal appeals are disposed of in the following
manner:
(a) the judgment and order passed by Special Judge, I Additional Special
Court for NDPS Act Cases, Chennai - 600 104, in C.C.No.36 of 1995,
dated 27.07.2017, is hereby set aside and the matter is remanded back to
the file of the trial Court with a direction to deal with all the issues raised
on either side, on its own merits and in accordance with law;
(b) the trial Court shall not permit either of the parties to re-open the
evidence or file any other applications and the matter is remanded back
to the file of the trial Court only with a view to enable the trial Court to
hear both sides finally on all the issues with the available materials and
deliver the judgment on its own merits and in accordance with law. This
exercise shall be completed by the trial Court within a period of four (4)
months from the date of receipt of a copy of this order;
(c) A5 and A6 are directed to execute a bond u/s.88 Cr.P.C. for a sum of
Rs.10,000/- [Rupees Ten Thousand only] without sureties undertaking to
appear before the trial Court on all hearing dates.
https://www.mhc.tn.gov.in/judis
Criminal Appeal Nos.464 of 2017, 114 & 138 of 2018
(d) the appellant in Crl.A.No.464 of 2017 has undergone sentence for more
than eight years and since the judgment of the trial Court is set aside and
the matter is remanded back to the file of the trial Court, this Court
deems it fit to enlarge the appellant [A2] on bail subject to the following
conditions:
(i) the appellant [A2] shall execute a bond for a sum of
Rs.10,000/- (Rupees ten thousand only) with two sureties
each for a like sum to the satisfaction of the trial Court;
(ii) the appellant [A2] shall report before the trial Court on all
hearing dates and on every Monday at 10.30 a.m. till the
final judgment is passed by the trial Court;
(e) if the appellant [A2], A5 and A6 attempt to delay the proceedings and/or
fail to comply with the conditions imposed by this Court, it is left open
to the trial Court to insist upon the presence of the appellant [A2], A5
and A6 and remand them to custody as laid down by the Honourable
Apex Court in State of Uttar Pradesh v. Shambhu Nath Singh (JT
2001 (4) SC 3191).
N. ANAND VENKATESH, J
https://www.mhc.tn.gov.in/judis
Criminal Appeal Nos.464 of 2017, 114 & 138 of 2018
gm
(f) the entire original records have been sent to this Court. Since the matter
is remanded back to the trial Court, the Registry is directed to
immediately send back the records to the trial Court.
29.03.2023
Index : Yes/No,
Speaking Order / Non Speaking Order
Neutral Citation: Yes/No
gm
To
1.The Special Judge,
I Additional Special Court for NDPS Act Cases,
Chennai - 600 104
2.The Intelligence Officer,
Narcotics Control Bureau,
Chennai Zone, Chennai.
3.The Public Prosecutor,
High Court, Madras.
Criminal Appeal Nos.464 of 2017, 114 & 138 of 2018
(2/2)
https://www.mhc.tn.gov.in/judis
