Madras High Court
Mohideen vs State By on 3 September, 2024
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.A.No.1338 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 28.03.2024
PRONOUNCED ON : 3.09.2024
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.A.No.1338 of 2022 and
Crl.M.P.No.20175 of 2022
Mohideen ... Appellant
Vs.
State by
Intelligence Officer,
Narcotic Control Bureau,
Chennai Zonal Unit,
Chennai – 90. ... Respondent
PRAYER: Criminal Appeal filed under Sections 374(2) of Criminal
Procedure Code, to set aside conviction and sentence passed in C.C.No.124
of 2018, dated 26.08.2022 pending on the file of the I Additional Special
Court for Exclusive Trial of Cases under NDPS Act, Chennai.
For Appellant : Mr.V.K.Sathiamurthy
For Respondent : Mr.N.P.Kumar,
Special Public Prosecutor
Page No.1 of 34
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Crl.A.No.1338 of 2022
JUDGMENT
The appellant was charged for offence under Sections 8(c) r/w 22(c)
and 8(c) r/w 28 of The Narcotic Drugs and Psychotropic Substances Act,
1985 (In short 'The Act') in C.C.No.124 of 2018. On conclusion of trial, the
learned I Additional Special Judge, Court of the Special Judge, I Additional
Special Court for Exclusive Trial of Cases under NDPS Act, Chennai
acquitted from the charge under Section 8(c) r/w 28 of the Act but convicted
the appellant for offence under Section 8(c) r/w 22(c) of the Act and
sentenced to undergo Rigorous Imprisonment for ten years and to pay a fine
of Rs.1,00,000/-, in default to undergo Rigorous Imprisonment for six
months vide judgment, dated 26.08.2022. Challenging the judgment of
conviction, present criminal appeal is filed.
2.The case of the prosecution is as follows:
(i)On 13.05.2018 at about 13.00 hours, Mr.Venkatesan, Intelligence
Officer of NCB/PW1 received secret information that the
appellant/Mohideen and one Razak of Saudi Arabia indulged in trafficking
of Methamphetamine from Chennti to Kerala and then to Saudi Arabia. The
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appellant was staying in Hotel Santhi Bhavan, Waltax Road, Park Town,
Chennai. PW1 and his team along with Manager Ajmal and
Receptionist/PW4 went to Room No.105, enquired its occupant confirmed
his name as Mohideen and informed him about information that he is
involved in smuggling of Methamphetamine and about the Section 50 of the
Act, enquired whether the appellant is willing to be searched in presence of
Magistrate or before a gazetted officer. The appellant refused for such
search and informed PW1, the NCB official can search him. The appellant
admitted he is in possession of 535 grams of Methamphetamine, kept in a
transparent polythene cover and handed over the same to PW1.
(ii)After collecting the same, PW1 opened the transparent polythene
cover containing white colour crystalline substance. PW1 took out a head
size of match stick of white colour crystalline substance from the packet,
tested with the drug detection kit which answered positive for
Methamphetamine. On the spot, mahazar prepared using laptop and
portable printer brought by them in Room No.105 and all the documents and
articles recovered from Mohideen annexed with mahazar. The appellant,
witnesses viz., PW4 and Ajmal signed the mahazar. The appellant was
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handed over a copy of mahazar who acknowledged the same. The entire
process ended at about 18.00 hours on the same day. On the next day i.e.,
on 14.05.2018 at about 11.00 hours, the appellant arrested and his arrest
intimation (Ex.P20) informed through speed post to his wife Mubashira on
the same day. The Remand Application (Ex.P21) under Section 167 Cr.P.C
r/w 51 & 53 of the Act submitted before the learned Judicial Magistrate,
Ambattur along with the appellant and seized properties. The learned
Magistrate on satisfaction remanded the appellant and explained the grounds
of his arrest. The appellant made no complaint against NCB officials and he
was remanded till 17.05.2018.
(iii)On 15.05.2018, the properties produced before the Special Court
for NDPS Act cases. The Samples S1 drawn from P1 was sent to the Joint
Director, Customs House Laboratory, Chennai for qualitative and
quantitative chemical analysis. PW3/Assistant Chemical Examiner received
the samples on 15.05.2018, gave report (Ex.P33), dated 22.05.2018
confirming “The sample is in the form of white crystals. It answers the tests
for the presence of Methamphetamine hydrochloride.”.
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(iv)PW5/Intelligence Officer of NCB took up further investigation on
18.05.2018, received chemical analysis report on 22.05.2018. PW5 sent a
communication on 24.05.2018 `to the Superintendent, NCB, Cochin to
conduct house search of the appellant in Malappuram. PW5 issued summon
(Ex.P37) to Ajmal, Manager of Hotel Shanthi Bhavan and PW4/Receptionist
and addressed letters to Vodafone Service Provider; Idea Service Provider;
The Bank Manager of South India Bank, Wandoor, Kerala; State Bank of
Travancore; State Bank of India, Wandoor Branch; The Manager of Central
Lodge Deluxe Chennai; The Manager of Kishore Inn Hotel, Chennai;
Income Tax Officer, Malappuram, Regional Transport Officer,
Thiruvanaikovil, Trichy, collected call detail records from the Vodafone and
Idea Service Providers, Statement of Accounts, Vouchers and Bills from the
Hotels and collected documents. On conclusion of investigation, PW5 filed
the complaint along with annexures before the trial Court on 01.11.2018.
The Trial Court during trial examined five witnesses (PW1 to PW5) and
marked seventy six documents (Exs.P1 to P76) and marked three material
objects (MO1 to MO3). On conclusion of trial, the Trial Court convicted the
appellant as stated above.
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3.The submissions of the learned counsel for the appellant is as
follows:
(i)The learned counsel for the appellant submitted that
PW1/Intelligence Officer on 13.05.2018 at about 13.00 hours prepared
information report (Ex.P1) and informed the same to his superior PW2 and
went to Hotel Shathi Bhavan where the appellant was staying. Ex.P1 does
not disclose any subjective satisfaction on the information received. PW1
along with NCB officials had gone to the Hotel Shanthi Bhavan informed
Manager Ajmal and PW4/Receptionist and enquired about the appellant's
stay. On verification, identified Room No.105. On plain reading of the
mahazar (Ex.P2), it is seen that except for PW1, PW4/Receptionist,
Ajmal/Manager, no officials of NCB team present during search and seizure.
Hence, the entire case rest on the evidence of PW1, PW4 and the mahazar
Ex.P2. It is seen from Ex.P2 Mandatory condition under Section 50 of the
Act not complied. In Ex.P2, it is recorded that the Intelligence Officer
Mr.N.Venkatesan/PW1 informed Mohideen/appellant about the provisions
under Section 50 of the Act, his right to be searched before a Magistrate or
before a gazetted officer and Mohideen politely denied. This is not in
compliance to Section 50 of the Act.
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(ii)He further submitted that there is no evidence or material to show
whether any other gazetted officer available in the NCB team to atleast
partly satisfying the mandatory condition. The Hon'ble Apex Court time and
again held that Section 50 of the Act is a mandatory provision affecting the
fundamental right under Article 21 of the Constitution of India and it cannot
be diluted in any manner. The appellant not conversant with Tamil or
English. Admittedly, in this case, there is no written communication under
Section 50 of the Act. In Ex.P2, there is nothing to show that Section 50 of
the Act substantially complied with. In Ex.P2, there is no recording to show
the appellant on questioning took the polythene cover from behind the
curtain and handed over to PW1. But in evidence, PW1 states so. PW1
confirms summon under Section 67 of the Act served to the appellant
directing him to appear on 13.05.2018 at about 20.00 hours. The seizure
concludes at 18.00 hours. After seizure of the contraband, no arrest made.
On the other hand, it is shown that summon for appearance of the appellant
at 20.00 hours served on the same day. PW4/Receptionist confirms PW1
and NCB Team took the appellant with them.
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(iii)He further submitted that both in the mahazar (Ex.P2) and in the
summon, the appellant singed in Kannada language which is the only
language known to him. There is nothing in Ex.P2 and Ex.P16 to show that
the contents of the same read over and explained in the language known to
the appellant. The appellant's voluntarily statement (Ex.P17) under Section
67 of the Act recorded in Kannada and translated in English (Ex.P18) by one
Mr.Ravikumar, Intelligence Officer. Thus, the appellant knew only
Kannada language is not disputed. In this case, drawing of mahazar,
informing the mandatory right of search under Section 50 of the Act not
communicated to the appellant in the langugage known to him. In the
statement under Section 67 of the Act (Ex.P17), the respondent projected the
case that the appellant came in contact with one Aman, through Aman one
Rajak and through Rajak, the appellant came in contact with Chandru and
Riyaz. The appellant called Riyaz and Chandru and both of them said to
have handed over the contraband to the appellant on 13.05.2018 at
Royapuram Railway Station. Pursuant to the statement, there is no recovery
of any articles. In the case of “Tofan Singh v. State of Tamil Nadu reported
in (2021) 4 Supreme Court Cases 1”, it is held that the statement given
under Section 67 of the Act is in nature of confession to the limited extent of
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recovery. Hence, Exs.P17 & P18 is of no consequence but Ex.P17 confirms
the appellant conversant and knows only Kannada for that reason only
Mr.Ravikumar, Intelligence Officer of NCB translated Ex.P17 to the English
language (Ex.P18).
(iv)The learned counsel further submitted that arrest of the appellant
shown on 14.05.2018 at about 11.00 hours to project a case as though the
appellant voluntarily gave statement (Ex.P17) and the same to be taken as
admissible piece of evidence. It is admitted that the appellant was detained
in custody by NCB from 13.05.2018 evening till the time of his arrest and
remand. In such circumstances, Exs.P17 & P18 inadmissible in evidence.
In this case, PW1 admits that after the contraband and other articles were
handed back by the remanding Magistrate to produce before the Special
Court for NDPS Act Cases, PW1 forwarded the same to the Officer-in-
Charge of Godown, NCB, Chennai on 14.05.2018 at about 20.15 hours. In
Ex.P24, there is no acknowledgement of receipt of sealed container of
contraband and other articles. Though an explanation attempted to be given
by PW1 through Ex.P25 that he handed over the contraband and other
articles to the Officer-in-Charge of Godown at about 20.15 hours on
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14.05.2018, except for the receipt what are the articles and under what
condition contraband received, number of packets, nothing recorded. In
such circumstances, it cannot be said that the contraband was in safe
custody.
(v)He further submitted that report under Section 57 of the Act
submitted with a delay on 15.05.2018 at about 11.00 hours. In the test report
conducted in Hotel Shanthi Bhavan, the crime number is found. Thus, the
investigation conducted on a preconceived notion and the investigation is
not fair and transparent.
(vi)The evidence of PW3/Assistant Chemical Examiner attached to
the Customs House Laboratory, Chennai is that she received the paper
envelope marked as S1 along with the Court Letter and test memo of PW1
on 15.05.2018 and she gave test report (Ex.P33) on 22.05.2018 that “The
sample is in the form of white crystals. It answers the tests for the presence
of Methamphetamine hydrochloride.”. In this case, Section 52-A of the Act
not followed. The Hon'ble Apex Court in Mohanlal case held that Section
52-A is a mandatory condition, failing to follow the condition is fatal to the
case of the prosecution. Admittedly, a petition in Crl.M.P.No.498 of 2018
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(Ex.P31) under Section 52-A of the Act for pre-trial disposal of the
contraband filed on 27.06.2018 and thereafter on 03.11.2018, the samples
taken from P1 and marked as CS1 and order passed. Thus, it is in clear
violation of the guidelines of the Hon'ble Apex Court in the case of “Union
of India v. Mohanlal and another reported in (2016) 3 SCC 379”
committed.
(vii)He further submitted that in this case, the statement of PW4 under
Section 67 of the Act marked as Ex.P35 cannot be taken in evidence and it is
the statement given before the Court can be taken in evidence and not
otherwise. Likewise, the statement (Ex.P39) of Ajmal, Manager of Hotel
Shanthi Bhavan cannot be considered as evidence in the absence of his
examination as witness. The call detail records received from Vodafone and
Idea Service Providers and other computer generated documents cannot be
taken in evidence in the absence of 65B Certificate as per Anwar Case.
PW5/Intelligence Officer who concluded the investigation, filed the
complaint before the trial Court states about investigation with regard to
background of the appellant and steps taken to secure Aman, Rajak, Chandru
and Riyaz, but failed to collect and produce any evidence. Thus, in the
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above case there is clear violation of Sections 42, 50 and 52-A of the Act.
(viii)The learned counsel for the appellant relied on the following
decisions:
1. Mangilal v. The State of Madhya Pradesh reported in 2023 LiveLaw
(SC) 549.
2. Manoj v. State of Kerala reported in 2024 0 KER 15604.
3. Arif Khan @ Agha Khan v. State of Uttarakhand reported in 2018 2
ACR 2082.
4. Narcotics Control Bureau v. Kulwant Singh reported in 2013 3 JCC
(Nar) 81.
5. Vijaysinh Chandubha Jadeja v. State of Gujarat reported in 2011 97
AIC 236.
6. State of Rajasthan v. Jag Raj Singh @ Hansa reported in 2016 3 ACR
2869.
7. Directorate of Revenue & Anr., v. Mohammed Nisar Holia reported
in 2008 1 SCC (Cri) 415.
8. Simarnjit Singh v. State of Punjab reported in 2023 LiveLaw (SC)
9. N.Uganchand Kumawat v. The Inspector of Police, NIB-CID,
Dindigul in Crl.A(MD).No.551 of 2021.
10.Yusuf @ Asif v. State in Criminal Appeal No.3191 of 2023.
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For the principle that the intention of the legislature by incorporating Section
52-A in the NDPS Act is to see that the process of drawing the sample has to
be in the presence and under the supervision of the Magistrate, and the entire
exercise has to be certified by him to be correct. Sub-section (4) of Section
52-A says that every court trying an offence under the NDPS Act shall treat
the inventory, the photographs of the contraband substance and the list of
samples drawn under sub-section (2) and certified by the Magistrate as
primary evidence in respect of such offence. In Vijaysinh Chandubha
Jadeja case, it is held that the requirement of Section 50 of the Act is
mandatory and the provision of Section 50 of the Act must be strictly
complied with. It is imperative on the part of the Police officer to apprise
the person intended to be searched of his right to be searched only before a
gazetted officer or a Magistrate and it is mandatory to make the suspect
aware of the existence of his right to be searched before a gazetted officer or
a Magistrate. The suspect person may or may not choose to exercise the
right provided to him under Section 50 of the Act. But so far as Officer is
concerned, an obligation is cast upon him under Section 50 of the Act to
appraise the suspect of his right to be searched before a gazetted officer or a
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Magistrate. For the point that the place which is required to be searched is
not open to public although situated in a public place as, for example, room
of a hotel, whereas hotel is a public place but a room occupied by a guest
may not be. Hence, there must be strict compliance of Section 42 of the Act.
It is obligatory that the officers on receiving information should reduce the
same to writing and also record reasons for the belief while carrying out
arrest or search as provided under the proviso to section 42(1).
4.The submissions of the learned Special Public Prosecutor appearing
for the respondent is as follows:
(i)The learned Special Public Prosecutor submitted that in this case,
all the mandatory provisions followed and complied with, considering the
same, the trial Court convicted the appellant. PW1/Intelligence Officer
received secret information through telephone, prepared information report
(Ex.P1) under Section 42 of the Act, verified with the informant to be
correct and placed the same before his superior officer/PW2 who after
discussion gave approval for necessary action. Thereafter, PW1 along with
his team had gone to the Hotel Shanthi Bhavan, made enquiry with the
Manager Ajmal and Receptionist/PW4 whether a person in the name of
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Mohideen is staying. PW4/Receptionist and Ajmal, Manager on verification
of Guest Registration Card (Ex.P14) confirmed that Mohideen (appellant)
checked in on 13.05.2018 at 08.24 hours by paying advance and staying at
Room No.105. PW1 along with NCB team, PW4 and the Manager Ajmal
entered the Room No.105 and PW1 disclosed his identity and enquired the
appellant informing information received that the appellant is in possession
and involved in smuggling of Methamphetamine. The appellant was
explained his right under Section 50 of the Act and given option for search
before a gazetted officer or before a Magistrate. The appellant denied such
option and informed PW1 that he can be searched by PW1 and he
voluntarily produced white colour transparent polythene cover containing
white crystalline substance. PW1 took out a match stick head size of white
colour crystalline substance from the packet and tested with drug detection
kit brought by them and the test answered positive for Methamphetamine, a
psychotropic substance.
(ii)Thereafter, the contraband weighed using the electronic weighing
scale brought by the NCB team. In presence of NCB officials, PW4 and
Ajmal, around 12 articles seized from the appellant like Aadhar Card, Debit
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Card of State Bank of India (3 Nos.), Debit Card of South India Bank, PAN
Card, Receipt, dated 02.05.2018 of Kishore Inn, Advance Receipt of Central
Lodge Deluxe, dated 06.05.2018, Hotel Santhi Bhavan Receipt, dated
13.05.2018, Cheque leaf of State Bank of Travancore, Wandoor Branch,
another Cheque leaf of State Bank of India, Perinthalmanna Branch and
Indian Currency of Rs.1,30,000/- denomination of Rs.2,000/- X 65. The
Indian currency was placed in a transparent polythene cover, heat sealed and
again placed in a light green cloth lined envelope, pasted and wax sealed
with NCB Seal No.11 and marked as P2. All the seized articles sealed, put it
in a cover, heat sealed, pasted and wax sealed with NCB Seal No.11. The
entire happenings recorded in mahazar (Ex.P2) and the mahazar proceedings
completed at about 18.00 hours. The summon under Section 67 of the Act
served to the appellant who received the same and accompanied the NCB
Team. The appellant was taken to NCB office where he gave voluntary
statement (Ex.P17), took some rest and continued the statement on next day.
The appellant wrote the statement in Kannada language, translated to
English by one Mr.Ravikumar, Intelligence Officer. The translated version
marked as Ex.P18. On 14.05.2018 at about 11.00 hours, the appellant was
arrested, arrest intimation (Ex.P20) informed to his wife Mubashira through
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speed post. On the same day, the appellant produced before the Judicial
Magistrate, Ambattur along with the contraband and other articles. The
Magistrate on satisfaction remanded the appellant, verified the contraband
and directed the contraband to be produced before the Special Court for
NDPS Act Cases by 17.05.2018. Thereafter, PW1 handed the contraband to
the Officer-in-Charge of Godown, NCB, Chennai for safe custody and the
appellant was lodged in Central Prison. After getting approval from the
superior officer/PW2 on 15.05.2018, the contraband produced before the
Special Court for NDPS Act cases along with memo and the samples S1
drawn from P1 was sent to the Joint Director, Customs House Laboratory,
Chennai for chemical examination. PW3/Assistant Chemical Examiner
received the samples on 15.05.2018 and gave report (Ex.P33), dated
22.05.2018 that “The sample is in the form of white crystals. It answers the
tests for the presence of Methamphetamine hydrochloride.”.
(iii)PW1 submitted a report under Section 57 of the Act to his superior
officer/PW2. On 18.05.2018, the case handed over to PW5/Intelligence
Officer who continued further investigation and received the report (Ex.P33)
from the Joint Director, Customs House Laboratory, Chennai. The
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respondent filed a petition (Ex.P31) under Section 52-A of the Act in
Crl.M.P.No.498 of 2018 for pre-trial disposal of the psychotropic substance
and the same was allowed by order (Ex.P32), dated 03.11.2018. On receipt
of summons, PW4 appeared for investigation, gave statement under Section
67 of the Act confirming to the happenings on 13.05.2018 in conformity to
the evidence of PW1.
(iv)He further submitted that the background of the appellant was
checked through the jurisdictional Police of Kerala and the Superintendent,
NCB, Cochin conducted search in the house of appellant in Malappuram.
PW5 collected bank details from the South Indian Bank, Wandoor; State
Bank of Travancore and State Bank of Inida, Wandoor Branch and CDR
particulars from Vodafone and Idea Service Providers. PW5 had taken steps
to secure the persons (Aman, Rajak, Chandru and Riyaz) disclosed by the
appellant in his statement, but unable to be traced. On conclusion of
investigation, PW5 filed complaint before the trial Court and taken on file as
C.C.No.124 of 2018. The trial Court on the evidence and materials
acquitted the appellant for the charge of conspiracy under Section 8(c) r/w
28 of the Act but convicted the appellant for possession of
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Methamphetamine for offence under Section 8(c) r/w 22(c) of the Act.
(v)He further submitted that in this case, the appellant is a Malayalee
by birth but claims that he knows only Kannada to read and write. Even
during the Court proceedings, the appellant able to understand what is
communicated to him in Tamil, but for the purpose to create defence he
claims to know only Kannada. From the appellant, 535 grams of
Methamphetamine of commercial quantity seized which is confirmed from
the evidence of PW1, PW4 and mahazar (Ex.P2). Ex.P2 prepared and
contemporaneously produced before the remanding Magistrate along with
the appellant. The contraband kept in safe custody in the godown of the
NCB. In Ex.P2, the appellant's right of being searched by a Magistrate or by
a gazetted officer recorded. No written notice given to the appellant but
verbally the right communicated to the appellant who denied such search
and agreed to be searched by PW1 which is explicitly recorded in Ex.P2. In
view of the above, he prays for dismissal of the criminal appeal.
5.This Court considered the rival submissions and perused the
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materials available on record.
6.In this case, the main point of attack by the appellant is that the
mandatory provision of Sections 42, 50 and 52-A not followed, violated and
the appellant is entitled for acquittal. In this case, PW1 and PW4 are the
witnesses to the search and seizure. According to PW1, he received
information at about 13.00 hours on 13.05.2018 which he recorded as per
Section 42 of the Act (Ex.P1) and placed before his superior officer/PW2.
PW2 noted and authorized PW1 to take necessary action as discussed.
Thereafter, PW1 along with NCB Team went to the Hotel Shanthi Bhavan,
disclosed his identity, enquired the Manager Ajmal and Receptionist/PW4
about Mohideen staying in the hotel. On verification of the guest
registration card (Ex.P14), the Manager Ajmal and PW4/Receptionist
confirmed that Mohideen staying at Room No.105. PW1 along with his
Team knocked Room No.105 door. Mohideen (appellant) opened the door
and PW1, his Team introduced themselves. PW1 informed the appellant
that credible information received about his possession of Methamphetamine
a psychotropic substance and also informed the safeguard provided under
Section 50 of the Act, whether the appellant is intended to be searched in
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presence of a Magistrate or before a gazetted officer. In the mahazar
(Ex.P2), it is recorded that the appellant denied the same and agreed for
PW1 to search him. It is also recorded that the appellant took a white colour
transparent polythene cover containing white colour crystalline substance
and handed over the same to PW1.
7.The contention of the prosecution is that it was the appellant who
voluntarily handed over the contraband and no personal search made on him,
hence, no written notice given. The procedure as per Section 50 of the Act
complied with as recorded in Ex.P2. The Constitutional Bench of the
Hon'ble Apex Court in Vijaysinh Chandubha Jadeja case held that the
substantial compliance makes obligatory upon the Officer concerned to
make the suspect aware of such right. In this case, the officer is expected to
prepare for carrying out his duties of investigation in accordance with
provision of Section 50 of the Act. Further, it had held that the prosecution
has to establish that information regarding the existence of such a right had
been given to the suspect and if such information is incomplete and
ambiguous then it cannot be construed to satisfy the requirement of Section
50 of the Act. In this case, the recordings in Ex.P2 is that before search “IO
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N.Venkatesan (PW1) informed Mohideen (appellant) about the provisions
under Section 50 of the Act and his right to be searched before a gazetted
officer or a Magistrate for which Mohideen politely denied and asked IO
N.Venkatesan that he can search him.” In this regard, the evidence of PW1
is that “I have also told him (Mohideen) his right available under Section 50
of the NDPS Act that he may be chosen to be searched before the Magistrate
or a gazetted officer for that he politely offered and told that the officer
present there can search him.” The evidence of PW4 is that “me;j
mjpfhhp eP';fs; psychotropic substance itj;Js;sjhf jfty;
te;Js;sJ nrhjid bra;antz;Lk;. nk$p!;nul;olnkh.
bfrl;ll; Mgprh; Kd;ngh nrhjid bra;a ntz;Lkh vd;W
bkha;jPid nfl;lhh;/ mjw;F mth; ntz;lhk; eP';fns bra;J
tplyhk; vd;W brhd;dh;/”
8.Admittedly, there is no written notice prepared in this case and there
is nothing on record to show the Team led by PW1 had any gazetted officer
atleast to show partial compliance to Section 50 of the Act. Further the
appellant knows only to read and write in Kannada language. In what
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language the right under Section 50 of the Act orally communicated, there is
no recording in Ex.P2. Further PW1 on prior information proceeded to
Hotel Shanthi Bhavan, hence written notice should have been complied. In
view of no written notice given and non availability of gazetted officer in the
team, it cannot be held that Section 50 of the Act substantially complied
with by the prosecution. In Vijaysinh Chandubha Jadeja case, the
Constitutional Bench of the Hon'ble Apex Court referred and followed the
earlier Constitutional Bench decision in “State of Punjab v. Baldev Singh
reported in (1999) 6 Supreme Court Cases 172” and held that “We have no
hesitation in holding that in so far as the obligation of the authorised officer
under sub-section (1) of Section 50 of the NDPS Act is concerned, it is
mandatory and requires a strict compliance. Failure to comply with the
provision would render the recovery of the illicit article suspect and vitiate
the conviction if the same is recorded only on the basis of the recovery of the
illicit article from the person of the accused during such search.”. Thus, the
Hon'ble Apex Court clearly held that Section 50 of the Act safeguards the
right under Article 21 of the Constitution of India, hence, the obligation
cannot be replaced by substituting with oral statement, that too with partial
compliance.
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9.It is also to be seen that neither in the mahazar (Ex.P2) nor in the
evidence of PW4, it is recorded that the appellant produced the contraband
from behind the curtain of a window and handed over to PW1. For the first
time, PW1 projected as though the contraband concealed behind the curtain
of a window and produced. In this case, on production of contraband by the
appellant, it was tested with the drug detection kit which confirmed the
presence of Methamphetamine, a psychotropic substance. But no arrest
made immediately rather a summon (Ex.P16) under Section 67 of the Act
issued for appearance of the appellant at about 20.00 hours on the same day.
The appellant said to have stated he accompanied NCB Team voluntarily.
But PW4 evidence is that after search by the NCB team, they took the
appellant along with them to the NCB office. After the appellant was taken
to the NCB office, statement under Section 67 of the Act recorded (Ex.P17).
This statement stretches from 13.05.2018 to 14.05.2018 and thereafter the
arrest shown at about 11.00 hours on 14.05.2018 as per the arrest memo
(Ex.P19). Admittedly, after the statement (Ex.P17), no recovery made.
10.It is pertinent to note that though the appellant is a Malayalee by
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birth, he knows only Kannada to read and write. His statement under
Section 67 of the Act (Ex.P17) in Kannada language translated by one
Mr.Ravikumar/Intelligence Officer in English (Ex.P18). The appellant
signed Exs.P2 & P19 in Kannada. In this case, admittedly, Mr.Ravikumar
neither listed as witness nor examined during trial. No reason given by
PW1, PW2 and PW5, the officials from NCB for non examination of
Mr.Ravikumar. Thus, Ex.P17 has got no relevance or significance in the
absence of the examination of Mr.Ravikumar.
11.In the case of “Tofan Singh v. State of Tamil Nadu reported in
(2021) 4 Supreme Court Cases 1”, the Hon'ble Apex Court held that the
statement recorded under Section 67 of the Act is only to the extent of any
recovery as under Section 27 of the Indian Evidence Act. In this case, prior
to the statement (Ex.P17), the contraband recovered and seized from the
appellant. Hence, on both score, the statement Ex.P17 and its translated
version Ex.P18 has no evidentiary value and no relevance to the above case.
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12.The other contention of the appellant is that in this case Section 52-
A of the Act not followed which is in violation of the guidelines of the
Hon'ble Apex Court in the case of “Union of India v. Mohanlal and
another reported in (2016) 3 SCC 379”. Admittedly, in this case, on
13.05.2018, information was received by PW1 at about 13.00 hours and
recorded in Ex.P1. PW1 visits the Hotel Shanthi Bhavan along with NCB
Team and enquired the Manager Ajmal and the Receptionist/PW4 about the
appellant. Thereafter, PW1, his team, PW4 and Ajmal had gone to Room
No.105, knocked the door, around 14.45 hours contraband produced by the
appellant, mahazar (Ex.P2) drawn recording the happenings in Room
No.105. In Room No.105, the contraband P3 and samples S1 and S2 were
drawn and Exs.P3 to P14 seized and the mahazar (Ex.P2) completed by
18.00 hours. In Ex.P2, it is recorded that “Thereafter the seized substances
believed to be Methamphetamine was weighed with the help of electronic
weighing scale brought by the NCB Officers, and found to weigh 535 grams
in net. Then two samples of 5 grams each was drawn, placed in separate
polythene covers, heat sealed and again placed in separate brown colour
paper envelopes, pasted and wax sealed with NCB seal No.11 and marked
as S1 and A2. The remaining white colour crystalline substance in the
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polythene cover, weighing 523 grams was heat sealed and placed in a light
green cloth lined envelope, pasted, wax sealed with NCB Seal No.11 and
marked as P1.”. The test memo (Ex.P15) prepared drawing samples at
Room No.105 of Hotel Shanthi Bhavan. Ex.P21 is the remand application
in which annexure No.3 is the list of properties 1 to 5. The property No.1 is
the 525 grams of white colour crystalline substance marked as P1, the
property No.4 is brown cover containing 5 grams of white colour crystalline
substance marked as S1 and the property No.5 is the brown cover containing
5 grams of white colour crystalline substance marked as S2. All sealed with
NCB Seal No.11. PW1 produced the same to the remanding Magistrate viz.,
the Judicial Magistrate, Ambattur verified the samples and made an
endorsement that “properties handed over to I.O for production before
NDPS Court, Chennai”. Thereafter, PW1 received the same and made
endorsement that “Received all properties and accused for safe custody and
depository the accused in prison.” The forwarding memo (Ex.P24) confirms
the contraband and samples taken by PW1 deposited in the Officer-in-
Charge of Godown NCB, Chennai on 14.05.2018 at 20.00 hours. Ex.P25 is
the Godown Receipt confirming the Forwarding Memo No.8 of 2018 with
articles received. Ex.P27 is the memo for submission of five properties
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before the Special Judge for NDPS Act Cases, Chennai. The Special Judge
on the request of the Intelligence Officer endorsed that Samples S1 to be
submitted to the Custom House Laboratory for examination and rest of the
properties to be handed back to the Intelligence Officer. Ex.P28 is the
request for forwarding the samples for qualitative and quantitative analysis
by the Customs House Laboratory, Chennai. Ex.P29 is the forwarding letter
of Sample S1 from the Special Court to the Joint Director, Custom House
Laboratory, Chennai, in which, PW3/Assistant Chemical Examiner endorsed
that the Sample S1 along with test memo received on 15.05.2015 from
Mr.N.Venkatesan/PW1. On 15.05.2018, S1 was produced before the
Special Judge, then it was forwarded to the Custom House Laboratory,
Chennai on the same day. The entire process of taking samples and
submitting to the Custom House Laboratory, Chennai was carried out by
PW1 which is not in dispute.
13.It is seen that Ex.P33 is the report, dated 22.05.2018 submitted by
the Joint Director, Custom House Laboratory, Chennai to the Special Court
confirming the examination of Sample S1 received by them. Ex.P33 was
received on 25.05.2018 by PW2. Thus, the test conducted by PW3 is on the
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sample S1 taken by PW1 in Room No.105 of Hotel Shanthi Bhavan which
was forwarded to them and the destruction of contraband was six months
thereafter during November 2018. Thus, there is clear violation of Section
52-A of the Act and the same is against the dictum of the Hon'ble Apex
Court in Mohanlal case. The relevant portion in Mohanlal case is as
follows:
“16. Sub-section (3) of Section 52-A requires that the
Magistrate shall as soon as may be allow the application. This
implies that no sooner the seizure is effected and the
contraband forwarded to the officer-in-charge of the police
station or the officer empowered, the officer concerned is in
law duty-bound to approach the Magistrate for the purposes
mentioned above including grant of permission to draw
representative samples in his presence, which samples will then
be enlisted and the correctness of the list of samples so drawn
certified by the Magistrate. In other words, the process of
drawing of samples has to be in the presence and under the
supervision of the Magistrate and the entire exercise has to be
certified by him to be correct.
17.The question of drawing of samples at the time of
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seizure which, more often than not, takes place in the absence
of the Magistrate does not in the above scheme of things arise.
This is so especially when according to Section 52-A(4) of the
Act, samples drawn and certified by the Magistrate in
compliance with sub-sections (2) and (3) of Section 52-A above
constitute primary evidence for the purpose of the trial. Suffice
it to say that there is no provision in the Act that mandates
taking of samples at the time of seizure. That is perhaps why
none of the States claim to be taking samples at the time of
seizure.
18.Be that as it may, a conflict between the statutory
provision governing taking of samples and the Standing Order
issued by the Central Government is evident when the two are
placed in juxtaposition. There is no gainsaid that such a
conflict shall have to be resolved in favour of the statute on first
principles of interpretation but the continuance of the statutory
notification in its 6 present form is bound to create confusion in
the minds of the authorities concerned instead of helping them
in the discharge of their duties. The Central Government
would, therefore, do well, to reexamine the matter and take
suitable steps in the above direction.”
14.It is seen that on 27.06.2018, a petition (Ex.P31) under Section 52-
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A of the Act in Crl.M.P.No.498 of 2018 was filed for pre-trial disposal. On
03.11.2018, the proceedings initiated in the Open Court and in presence of
Special Public Prosecutor and NCB officials, green colour cloth lined cover
containing white crystalline substance marked as P1 was weighed and the
Court samples (CS1) of 0.052 kgs taken from P1 and thereafter, in
Crl.M.P.No.496 of 2018, order passed directing the NCB officials to
handover P1 to the Drug Disposal Committee for destruction. The admitted
portion is that in this case the samples taken before the Special Judge on
03.11.2018 is for the purpose of destruction. In this case, though the search
conducted in a hotel which may be a public place, the room occupied by a
guest may not be said so. Hence, the appellant is entitled to his right of
privacy and nobody even the staff can walk into the room without his
permission. In such circumstances, Section 42-A of the Act not complied
with. In this case, PW1 received information, reduced the same into writing
and forwarded the same to his superior officer/PW2, but there is no
recording of reason for belief while carrying out search or arrest as per
proviso to Section 42(1) of the Act. Since it is a prior information, Section
42(1) of the Act ought to be followed by PW1.
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15.The specific case of the appellant is that he knows only to read and
write Kannada. In such circumstances, recording Ex.P2 in English, serving
a copy in English to the appellant will not satisfy compliance of mandatory
provision under Section 50 of the Act. The consistent stand of the appellant
is that he knew only Kannada, that is the reason in mahazar (Ex.P2),
summon (Ex.P16), statement (Ex.P17) and arrest memo (Ex.P19), written
and acknowledged in Kannada. As stated earlier, the translator from
Kannada to English viz., Mr.Ravikumar, Intelligence Officer neither shown
as witness nor examined in this case.
16.In view of the above discrepancies and finding that there is non
compliance of statutory provisions of Sections 42, 50 and 52-A of the Act,
this Court comes to the conclusion that the prosecution case is not free from
suspicion and the prosecution failed to establish the case beyond reasonable
doubt.
17.In the result, the case as projected by the prosecution is not safe to
sustain conviction of the appellant. In such view of the matter, the
conviction and sentence imposed by the trial Court against the appellant
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cannot be sustained in the eye of law. As such, the conviction and sentence
imposed on the appellant in C.C.No.124 of 2018 by the learned I Additional
Special Judge, Court of the Special Judge, I Additional Special Court for
Exclusive Trial of Cases under NDPS Act, Chennai is set-aside and this
Criminal Appeal is allowed. The appellant is acquitted of all the charges
levelled against him and the fine amount, if any paid, shall be refunded to
him. The appellant is directed to be released forthwith, unless his custody is
required in connection with any other case. Consequently, the connected
miscellaneous petition is closed. No costs.
3.09.2024
Speaking Order/Non Speaking Order
Index : Yes/No
Internet : Yes/No
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To
1.The I Additional Special Judge, Court of the Special Judge,
I Additional Special Court for Exclusive
Trial of Cases under NDPS Act,
Chennai.
2.The Intelligence Officer,
Narcotic Control Bureau,
Chennai Zonal Unit,
Chennai – 90.
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3.The Superintendent,
Central Prison, Puzhal.
4.The Public Prosecutor,
High Court, Madras.
M.NIRMAL KUMAR, J.
vv2
PRE-DELIVERY JUDGMENT IN
3.09.2024
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