Madras High Court
Y.V.Nagaraj vs State By on 29 March, 2023
Criminal Appeal Nos.463 & 730 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.03.2023
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
Criminal Appeal Nos.463 & 730 of 2017
Crl.A.No.463 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.48/1/3/95-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.418 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
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Criminal Appeal Nos.463 & 730 of 2017
Crl.A.No.730 of 2017
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.418 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 both the appeals arise out of one and the same judgment, they are
considered and decided by this common judgment.
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Criminal Appeal Nos.463 & 730 of 2017
2. Crl.A.No.463 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.418 of 1995,
dated 27.07.2017, convicting and sentencing the appellant in the following
manner:
Sl. Convicted for offence Sentence
No. u/s.
1. Section 8(c) r/w 22(b) 10 years rigorous imprisonment and fine of
of NDPS Act, 1985 Rs.1,00,000/-, in default, to undergo 2 years
imprisonment.
2. 8(c) r/w 23(b) of 10 years rigorous imprisonment and fine of
NDPS Act, 1985 Rs.1,00,000/-, in default, to undergo 2 years
imprisonment.
3. 8(c) r/w 29 of NDPS 10 years rigorous imprisonment and fine of
Act, 1985 Rs.1,00,000/-, in default, to undergo 2 years
imprisonment.
The above sentences were ordered to run concurrently.
3. Crl.A.No.730 of 2017 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.418 of 1995, dated 27.07.2017, insofar as the sentence
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Criminal Appeal Nos.463 & 730 of 2017
imposed against the respondent [A2] for various offences and seeking for
enhancement of sentence.
4. The NCB filed a complaint on 24.07.1995 alleging that a
communication was received by the Drug Liaison Officer, Customs and
Excise, at Mumbai from the South African Police to the effect that a
consignment of clear bulbs exported by M/s.K.J.Exports, Chennai,
contained 20,34,000/- Methaqualone tablets and the same was seized by the
authorities in the Kingdom of Swaziland. Based on this communication, an
investigation was conducted and documents were seized and statements
were recorded from various persons and it came to light that A1 had
procured tablets and A2 and A3 had floated a fictitious company in the
name and style of M/s.K.J. Exports at Chennai and A2 to A4 stored the
tablets in their premise in Kotturpuram. They packed these tablets in the
clear bulbs and the consignment was exported. After the consignment
reached South Africa, the same was tested by the South African Police and it
was confirmed that the consignment contained 20,34,000/- Methaqualone
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Criminal Appeal Nos.463 & 730 of 2017
tablets. Since this drug is a psychotropic substance falling under the
Narcotic Drugs and Psychotropic Substances Act [hereinafter referred to as
'NDPS Act'], the complaint was filed against four accused persons. Out of
these four accused persons, A1 absconded and was not traced and A3 and
A4 died during trial. Hence, the case was effectively conducted only as
against the appellant [A2].
5. After the complaint was taken cognizance by the Court below
u/s.36(A)(d) of the NDPS Act, copies were served on the accused persons
u/s.208 Cr.P.C. On finding prima facie materials, charges were framed
against A1 to A4 u/s.8(c) r/w 22 and 23 of the NDPS Act. Separate charges
were also framed against A2 to A4 u/s.29 of the NDPS Act. When the
charges were put to the accused persons, the same were denied. Since A1
was absconding, the case was split up and an additional charge u/s.8(c) r/w
29 of the NDPS Act was framed against A2 to A4. Due to the demise of A3
and A4 during the pendency of trial, the charges abate against them.
6. The prosecution examined PW-1 to PW-9 and marked Exs.P1 to
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Criminal Appeal Nos.463 & 730 of 2017
P52. The incriminating evidence that was gathered during the course of trial
was put to the appellant [A2] when he was questioned u/s.313(1)(b) Cr.P.C
and he denied the same as false.
7. 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 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.463 of 2017 and the NCB has filed Crl.A.No.730 of 2017 seeking
for enhancement of sentence.
8. Heard Mr.B.Kumar, learned Senior Counsel, appearing for
appellant [A2] and Mr.N.P.Kumar, learned Special Public Prosecutor,
appearing for NCB.
9. Learned counsel appearing on either side made elaborate
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Criminal Appeal Nos.463 & 730 of 2017
submissions touching upon the merits of the case by pointing out to the
evidence of the witnesses and the documents that were relied upon by the
prosecution.
10. 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.
11. Learned counsel for the appellant [A2] and learned Special Public
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Criminal Appeal Nos.463 & 730 of 2017
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.
12. 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
confessional statement made to them would be barred under the
provisions of Section 25 of the Evidence Act, and cannot be taken
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Criminal Appeal Nos.463 & 730 of 2017
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."
13. 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.
14. 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.
In the result, these criminal appeals are disposed of in the following
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Criminal Appeal Nos.463 & 730 of 2017
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.418 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) the appellant in Crl.A.No.463 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
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Criminal Appeal Nos.463 & 730 of 2017
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;
(iii) if the appellant [A2] attempts to delay the proceedings
and/or fails 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] and remand him to custody
as laid down by the Honourable Apex Court in State of
Uttar Pradesh v. Shambhu Nath Singh (JT 2001 (4) SC
3191).
(d) 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
N. ANAND VENKATESH, J
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Criminal Appeal Nos.463 & 730 of 2017
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.463 & 730 of 2017
29.03.2023
(1/2)
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