Madras High Court
Rasuldeen vs The Superintendent Of Customs on 15 May, 2025
Crl.A(MD) No.929 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 24.01.2025
Pronounced On : 15.05.2025
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
Crl.A.(MD).No.929 of 2023
Rasuldeen ... Appellant/Sole Accused
Vs.
The Superintendent of Customs
Airport, Madurai District,
O.S.No. 36/2013 ... Respondent/Complainant
PRAYER: Criminal Appeal has been filed under Section 374(1) of
Cr.P.C., to call for the records in C.C.No. 30 of 2014 dated
27.09.2023 on the file of the Learned I Additional Special Court for
NDPS Act Cases, Madurai and set aside the same by allowing this
appeal.
For Appellant : Mr.M.Jegadeesh Pandian
For Respondent : Mr. C.Arul Vadivel @ Sekar
Special Public Prosecutor for Customs
JUDGMENT
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The sole accused in CC.No.30 of 2014 on the file of the II
Additional Special Court for NDPS Act Cases, Madurai has filed this
Criminal Appeal, challenging the conviction and sentence imposed
against him by virtue of the impugned judgment dated 03.11.2014. The
conviction and sentence is as follows:
Conviction for the Offence under Sentence of Imprisonment
Sections
9(A) of NDPS Act r/w Rules 3, 4 4 years RI and to pay a fine of Rs.
and 6 of the NDPS Act, 40,000/- in default to undergo 9
(Regulation of Controlled months S.I
Substances) order 1993 and
punishable under Section 25 (A) of
NDPS Act, 1985
2. According to the prosecution, Meenalochani, IRS, the Joint
Commissioner of Customs, Madurai had received the information about
the illegal transportation of the narcotic drugs and substances through
Madurai Airport and hence, she directed PW5 to conduct search and
recover the contraband. P.W.5 who received the said information on
03.07.2017 from his superior, went to Madurai airport along with PW1
and asked the staff of Airlines to check the list of passengers of Srilankan
Airlines and found out the name of the appellant, and enquired with him
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about the smuggling of contraband.
3. The further case of the prosecution is that they made search in
the bags of the appellant and found possession of 7.299 Kilograms of
Ephedrine Hydrochloride and Pseudoephedrine Hydrochloride, which are
controlled substances, in violation of Section 113 (d) 114, 135 of the
Customs Act, 1962 and 25 (A) and 29 of the NDPS Act, 1985. They took
the samples from each bag and also checked further for possession of any
other contraband, and summoned the accused under Section 67 of the
Customs Act,1962 and obtained the statement and thereafter they
arrested the accused and remanded him to judicial custody with the
recovered contraband and other relevant documents.
4. PW5, continued the investigation and obtained the Chemical
Analysis Report and filed the complaint under Section 103 of the
Customs Act, 1962 for the offence under Section 9(A) of NDPS Act r/w
Rules 3, 4 and 6 of (Regulation of Controlled Substances) order, 1993
and punishable under Sections 25(A), 29 of NDPS Act, 1985 before the
II Additional Special Court for NDPS Act Cases, Madurai. The complaint
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was taken on file in CC.No.30 of 2014 and the Court summoned the
accused and on the appearance of the accused, the copies of the records
were furnished to him under Section 207 of Cr.PC.
5. The learned Trial Judge on perusal of the complaint, framed the
necessary charges for the above said offences and explained to the
appellant and the appellant pleaded not guilty and stood for trial.
6. The prosecution in order to prove its case had examined PW1 to
5 and marked Exs.P1 to 17 and produced material object M.O.1.
Thereafter, the learned Trial Judge questioned the accused under Section
313 (1) (b) of Cr.PC by putting incriminating materials available against
him and the accused denied the same as false and he stated that false case
was foisted against him. The accused neither produced any document nor
examined any witnesses on his side. The learned Trial Judge considering
the material circumstances found that accused was guilty under Section
9(A) of NDPS Act r/w Rules 3, 4 and 6 of the NDPS Act, (Regulation of
Controlled Substances) order 1993 and punishable under Section 25 (A)
of NDPS Act, 1985 and recorded conviction and passed sentence against
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the accused as stated above. Challenging the same, the appellant
preferred this appeal.
7. The learned counsel for the appellant made the following
submissions:-
7.1. The secret information was received by Meenalochani, IRS,
the Joint Commissioner of Customs, Madurai. She was not examined on
the side of prosecution. In fact, no material was produced before the
Court to show that she informed to her immediate superior and therefore,
there is no compliance of Section 42 of the NDPS Act. Hence, the
conviction and sentence passed against the appellant is not legally
maintainable.
7.2. The learned Trial Judge has committed error in holding
Section 42 was not applicable to the present case, which is a fundamental
error committed by the learned Trial Judge, and therefore, the conviction
and sentence is not legally maintainable.
7.3. The learned Trial Judge failed to consider the discrepancy
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between the evidence of PW1 and PW5, about the recovery of the
contraband from the appellant. The evidence of PW2, the independent
witness is not reliable evidence. Therefore, the learned Trial Judge has
committed error in relying the evidence of PW2 and hence, he seeks for
acquittal.
7.4. The learned counsel for the appellant also submitted that
seizure was made at 04.20 pm, so it is impossible to nab the accused
before 10 minutes. Normally, the boarding takes place half an hour
before, therefore, the alleged discrepancy about the time of securing the
accused creates suspicion of the recovery of the contraband. The learned
counsel also submitted that he is the first time offender and he has no
previous case and the recovered contraband is a controlled substance and
it is used for medicinal purposes, and therefore, he seeks for reducing the
sentence to the period already undergone.
8. The learned Special Public Prosecutor made the following
submissions:-
8.1. The presence of the appellant in the Airport at Madurai, at the
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relevant point of time is proved through the recovery of the documents
and the ownership of the bag in which the contraband was found, was
also proved and the witnesses PW2 and 5, in unison have spoken about
the recovery. The case of the prosecution is clearly proved.
8.2. In this case, Meenalochani, IRS, the Joint Commissioner of
Customs, Madurai is the head of the department and there is no necessity
to inform her immediate superior and therefore, the argument of the
counsel for the appellant that there is no compliance of Section 42, is a
misconceived one.
8.3. It is true that the learned Trial Judge has recorded a finding
that Section 42 is not applicable. The said finding is also correct, since
the recovery was made in the public place namely airport, therefore, there
was no infirmity in the judgment passed by the learned Trial Judge
finding that Section 42 has no application and Section 43 alone is
applicable.
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8.4. The learned Senior Counsel also submitted that the alleged
time discrepancy of 04.20 pm is immaterial when the witnesses were
examined after many years and therefore, the normal discrepancy would
have occurred. In these circumstances, he seeks for the confirmation of
the conviction and sentence passed against the appellant under the
charged offence. The learned senior counsel fairly accepted that there is
no previous case against the appellant but in view of the possession of
the huge commercial quantity of the controlled substances, he seeks to
confirm the sentence.
9. This Court has considered the rival submissions advanced by
either side and perused the records and also precedents relied upon by
them and this Court had gone through the evidence, documents and
considered the submissions made by both counsel on record.
10. Discussion on the finding of the learned trial Judge that
Section 42 of the Act is not applicable to the present case :-
10.1. As per the Section 42 of the Act, if the empowered officer
received the secret information about the illegal possession,
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transportation of narcotic drugs or psychotropic substance or controlled
substance he is duty bound to reduce the said information in writing and
shall send the same to his immediate superior within 72 hours. The
Hon’ble Constitution Bench of the Supreme Court in the case of Karnail
Singh v. State of Haryana, reported in (2009) 8 SCC 539 has considered
the said requirement and laid the following guidelines:-
“35.In conclusion, what is to be noticed is that
Abdul Rashid [(2000) 2 SCC 513 : 2000 SCC (Cri)
496] did not require literal compliance with the
requirements of Sections 42(1) and 42(2) nor did
Sajan Abraham [(2001) 6 SCC 692 : 2001 SCC
(Cri) 1217] hold that the requirements of Sections
42(1) and 42(2) need not be fulfilled at all. The
effect of the two decisions was as follows:
(a) The officer on receiving the information
[of the nature referred to in sub-section (1) of
Section 42] from any person had to record it in
writing in the register concerned and forthwith send
a copy to his immediate official superior, before
proceeding to take action in terms of clauses (a) to
(d) of Section 42(1).
(b) But if the information was received when
the officer was not in the police station, but while he
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was on the move either on patrol duty or otherwise,
either by mobile phone, or other means, and the
information calls for immediate action and any
delay would have resulted in the goods or evidence
being removed or destroyed, it would not be feasible
or practical to take down in writing the information
given to him, in such a situation, he could take
action as per clauses (a) to (d) of Section 42(1) and
thereafter, as soon as it is practical, record the
information in writing and forthwith inform the
same to the official superior.
(c) In other words, the compliance with the
requirements of Sections 42(1) and 42(2) in regard
to writing down the information received and
sending a copy thereof to the superior officer, should
normally precede the entry, search and seizure by
the officer. But in special circumstances involving
emergent situations, the recording of the information
in writing and sending a copy thereof to the official
superior may get postponed by a reasonable period,
that is, after the search, entry and seizure. The
question is one of urgency and expediency.
(d) While total non-compliance with requirements of
sub-sections (1) and (2) of Section 42 is impermissible,
delayed compliance with satisfactory explanation about the
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delay will be acceptable compliance with Section 42. To
illustrate, if any delay may result in the accused escaping or
the goods or evidence being destroyed or removed, not
recording in writing the information received, before
initiating action, or non-sending of a copy of such
information to the official superior forthwith, may not be
treated as violation of Section 42. But if the information was
received when the police officer was in the police station with
sufficient time to take action, and if the police officer fails to
record in writing the information received, or fails to send a
copy thereof, to the official superior, then it will be a
suspicious circumstance being a clear violation of Section 42
of the Act. Similarly, where the police officer does not record
the information at all, and does not inform the official
superior at all, then also it will be a clear violation of Section
42 of the Act. Whether there is adequate or substantial
compliance with Section 42 or not is a question of fact to be
decided in each case. The above position got strengthened
with the amendment to Section 42 by Act 9 of 2001.
10.2. It is true that in this case, the learned trial Judge has
erroneously held that Section 42 of the Act is not applicable and Section
43 of the Act alone is applicable. The said finding is not correct. Plea of
applicability of Section 42 of the Act is different from non-compliance of
Section 42 of the Act. In this case, Section 42 of the Act is applicable and
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there was strict compliance under Section 42 of he Act i.e., 03.07.2013 at
15.50 Hrs, the Meenalochani, IRS, the Joint Commissioner of Customs,
Madurai, received the information from her superior Additional Director
of Revenue Intelligence namely Balaji Majumdar about the smuggling of
contraband to Columbo and he immediately transmitted the information
to Meenalochani, IRS, the Joint Commissioner of Customs, Madurai, and
she in turn directed PW5 to go and search of the airport about the said
accused. To prove the same, they produced Ex.P.9 and Ex.P.9 clearly
speaks about the passing of the information. Since, the information
emanated from the Director of the Revenue Intelligence, the requirement
of the compliance of Section 42 of the Act is not material. Therefore, this
Court is not inclined to accept the argument of learned counsel for the
appellants that the prosecution has not complied the requirement of
Section 42 of the Act.
11. The recovery of the contraband in the bag of the appellant is
clearly proved through the cogent and trustworthy evidence of P.W.1 to
P.W.5 that the contraband was recovered from the bag of the appellant.
Neither the appellant's presence in the airport nor the ownership of the
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bag is denied. To prove the same, they examined the airport authorities
and also the relevant document has been marked. The appellant has also
not denied the possession of the bag during questioning under Section
313 Cr.P.C., proceedings. The contraband was found sealed in nine ladies
hand bags. The manner of keeping the contraband in the bag a
circumstance to presume illegal transportation of the said contraband,
even though the department suspected the presence of the 'amphetamine'
and the contraband answered for the presence of controlled substance
namely Ephedrine Hydrochloride and Pseudoephedrine Hydrochloride.
12. The Department properly took the samples and properly sealed
and properly got Chemical Analysis Report and remaining contraband
was properly sealed packed and produced before the Court and there was
no dispute about the same. In view of the above circumstances, the
prosecution proved the case against the appellant for the possession of
7.299 Kilograms of Ephedrine Hydrochloride and Pseudoephedrine
Hydrochloride, and his attempt to smuggle to Columbo through the
Srilankan Airlines on 03.07.2017 and hence, the learned Trial Judge
convicted him under Section 9(A) of NDPS Act r/w Rules 3, 4 and 6 of
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(Regulation of Controlled Substances) order 1993 and punishable under
Section 25 (A) of NDPS Act, 1985. Therefore, there is no need to
interfere with the judgment passed by the learned Trial Judge.
13. The appellant has no previous bad antecedents and considering
the said fact and as he is the first time offender, this Court is inclined to
reduce the sentence to the period of imprisonment already undergone by
the accused and enhance the fine from Rs.40,000/- (Rupees Forty
Thousand Only) to Rs.1,00,000/- (Rupees One Lakh) with default
sentence of 9 months SI.
14. Accordingly, this criminal appeal is partly allowed in the
following terms:
(i). The conviction of the learned Trial Judge
and CC.No.30 of 2014 passed against the appellant
under Section 9(A) r/w Rules 3, 4 and 6 of the NDPS
Act, (Regulation of Controlled Substances) order
1993 and punishable under Section 25 (A) of NDPS
Act, 1985 is confirmed. The sentence to undergo 4
years RI, is reduced to the period of imprisonment
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already undergone with a condition to pay a fine
amount of Rs.1,00,000/- with default sentence of nine
months.
(ii). The enhanced fine amount of Rs.60,000/-
(Rupees Sixty Lakhs Only) has to be paid by the
appellant/sole accused within a period of one month
from the date of receipt of copy of this order,
otherwise the punishment imposed by the learned
Trial Judge in the CC.No.30 of 2014 will stand
restored automatically.
(iii). The bail bond executed by the appellant is
terminated and the appellant is set at liberty, if his
presence is not otherwise required in any other case.
15.05.2025
NCC : Yes/No
Index : Yes/No
Internet : Yes/No
Nikhal
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K.K.RAMAKRISHNAN, J.
Nikhal
1.The I Additional Special Court for NDPS Act
Cases, Madurai
2.The Superintendent of Customs
Airport, Madurai District,
3.The Special Public Prosecutor for Customs
Madurai Bench of Madras High Court,
Madurai.
4.The Section Officer,
Record Section (Criminal),
Madurai Bench of Madras High Court, Madurai.
15.05.2025
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