Intelligence Officer Narcotics Control Bureau vs Mohamed Saleem @ Rifaz

This appeal has been preferred against an order of acquittal passed by the learned Additional Judge, Special Court for NDPS Cases, Chennai,

in C.C.No.51 of 1999 dated 23.09.2004.

The respondents herein are the accused. They stood charged for the offence under Sections 8(c) r/w 21 and 29 of NDPS Act 1985. The Trial

Court, by judgment dated 23.09.2004, found the first accused/first respondent guilty and convicted him under Section 8(c) r/w 21(c) of NDPS

amended Act, 2001, and sentenced him to undergo ten years rigorous imprisonment and to pay a fine of Rs.1,00,000/- (Rupees one lakh) in

default to undergo rigorous imprisonment for one year and found the second accused/second respondent guilty and convicted him under Section

8(c) r/w 21(b) of NDPS Act and sentenced him to undergo two years rigorous imprisonment and to pay a fine of Rs.15,000/- (Rupees fifteen

thousands) in default to undergo rigorous imprisonment for six months. The trial Court acquitted both the accused/respondents for the offence

under Section 8(c) r/w 29 of the NDPS Act. Now, challenging the order of acquittal in respect of charge under Section 8(c) r/w 29 of NDPS Act,

the appellant filed the present appeal.

The case of the prosecution, in brief, is as follows: (i) On 21.12.1998, the Officers of the Narcotics Control Bureau(NCB), Chennai, on

information, intercepted the first accused at Kamarajar Domestic Airport, Chennai, while he bound for Mumbai. P.W.1 was working as

Intelligence Officer, Narcotics Control Bureau, Chennai along with a team of officers based on an information received through his informant and

after revealing his identity, informed him about the information and informed him that he has a right to be taken to Magistrate for search, P.W.1

searched the bag belonging to the first accused and found 2 Kilo grams of narcotics substance(heroin) and he tested the substance with test hit

brought by them and got the positive report. After following the necessary procedure as contemplated under NDPS act seized the Narcotic

substance. Then, during the investigation, the first accused informed P.W.1 that the above narcotics substance brought for A-2 and the same was

recorded by P.W.5. Based on that P.W.1, P.Ws.6 and 11, the Intelligence Officers, working in NCB proceeded to the house of A-2, where his

wife was present, after informing about her legal rights, they conducted search and during the search they found 10 grams of narcotics substance

and after following the procedure as contemplated under Section 50 of the NDPS Act seized the same. Subsequently, necessary summons were

issued to the accused and both the accused appeared before the authorities, and A-1 voluntarily given a statement which was recorded by

P.W.5[Ex.P31]. Then P.W.5 arrested the first accused. A-2 appeared before P.W.6 and he has also voluntarily given statement Ex.P44. Then,

P.W.6 arrested the second accused after following the legal formalities. P.Ws.5 and 6 searched the another house of A-2 at Palavakkam, where

no incriminating materials were seized. Then, the seized contrabands were sent for chemical examination and the chemical examination, found

presence of Di- Actyle morphine, a narcotic drug and the chemical report was marked as Ex.p23. Then the Manager, Indian Airlines, Madras was

examined, Flight Manifesto was also recorded and after completing the investigation, P.W.1 has filed the charge sheet before the Special Court for

NDPS Act cases.

Considering the above materials, the Trial Court framed charges as detailed above and the accused denied the same as false. In order to prove

the case of prosecution, as many as 11 witnesses were examined, 52 documents were exhibited and 17 material object were marked.

Out of the said witnesses examined, P.W.1 is the Intelligence Officer at NCB, Chenai. According to him, he had received an information that

the first accused is going to Bombay in a Indian Airlines Flight, and carrying 2 kgs of heroin and after receipt of the information, he formed a team

and intercepted A-1 at the Airport, after informing him about the information and also his legal rights P.W.1 searched the bag of the first accused

and found 2 kgs of heroin and after completing all the formalities, he seized the heroin. P.W.2 is working as Assistant Chemical Examiner attached

to the Customs House, examined the seized contrabands and found that all the three samples are heroin and he sent report Ex.P23. P.W.3 is

working as Intelligence Officer in NCB, Chennai and he conducted investigation. Based on the statement given by A-2 he recorded the statement

of one Magudaraj and he identified the second accused. P.W.4 is another Intelligence Officer working in NCB at Chennai. He searched the house

of A-2 at Palavakkam and he found no incriminating materials. P.W.5 is an Intelligence Officer working in NCB at Chennai. He along with P.W.1

examined the first accused and thereafter issued summons to A-1 and recorded his statement. P.W.6 is also an Intelligence Officer working in

NCB at Chennai. He was in the part of the team intercepted the first accused and he issued summons to the second accused, recorded the

statement of A-2, arrested him and remanded him to judicial custody. P.W.7 was working as Traffic Superintendent in Kamarajar Domestic

Airport, Chennai. He was a witness to the seizure of heroin. P.W.8 is working as Superintendent in NCB, Chennai. He received an information

that a person was carrying heroin and travelling from Chennai to Bombay and he informed the same to P.W.1. P.W.9 is the witness to the seizure

of heroin from the house of A-2. P.W.10, he is one of the resident in the house where A-2''s wife was resided and he is witness to the search

conducted by Intelligence Officers. According to him, no incriminating material was found in the house of A-2''s wife. P.W.11 is working as

Intelligence Officer in NCB, Chennai. He was also part of the team intercepted A-1 at Airport.

When the above incriminating materials were put to the accused under Section 313 Cr.P.C., they denied the same as false. Their defence was a

total denial. They have examined one Noor Mazharia as D.W.1 and no exhibits were marked.

Considering the above materials, the trial Court convicted first accused/first respondent under Section 8(c) r/w 21(c) of NDPS Act, and

sentenced him to undergo ten years rigorous imprisonment and to pay a fine of Rs.1,00,000/- (Rupees one lakh) in default to undergo rigorous

imprisonment for one year and found the second accused/second respondent guilty and convicted him under Section 8(c) r/w 21(b) of NDPS Act

and sentenced him to undergo two years rigorous imprisonment and to pay a fine of Rs.15,000/- (Rupees fifteen thousands) in default to undergo

rigorous imprisonment for six months. The trial Court acquitted both the accused/respondents for the offence under Section 8(c) r/w 29 of the

NDPS Act. Now, challenging the order of acquittal in respect of charge under Section 8(c) r/w 29 of NDPS Act, the appellant filed the present

appeal.

Even though notice was served on the respondents 1 and 2 and there was no representation on behalf of the respondents. Hence, this Court, by

order dated 19.12.2016, appointed Thiru.S.N.Thangaraj, learned Advocate as the Legal Aid Counsel for the respondents.

Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents and perused the materials available

on record.

The learned counsel appearing for the appellant would contend that while the Court below believing the evidence of the prosecution witnesses

convicted the accused for the offence under Section 8(c) r/w 21(b) of NDPS Act, the Court below ought not to have acquitted the accused for the

offence under Section 8(c) r/w 29 of NDPS Act. The learned counsel appearing for the appellant further submitted that the prosecution mainly

relied upon the confession statement of the respondents/A1 and A2 marked as Exs.P31 and P44, the Court below has believed the said

confession statement, convicted the respondents/accused 1 and 2 for the other offences, but acquitted the accused for the charge of conspiracy on

the ground that there was no further investigation regarding the statement given by the respondents/accused 1 and 2. Once the Court below come

to a conclusion that the statement given by the accused under Section 67 of the NDPS Act is voluntary and admissible in evidence and based on

the same convicted the respondents/accused, it cannot partly disbelieved the statement and acquitted the accused for the charge of conspiracy, as

sufficient materials available from the statement of the accused to prove the conspiracy. The learned counsel appearing for the appellant further

submitted that it is settled law that the confession of the accused made under Section 67 of the NDPS Act can be a sole basis for convict the

accused and from the confession of the accused, the prosecution has clearly proved the conspiracy between the accused for committing offence.

Hence, the Court below ought not to have acquitted the accused stating that from mere filing the statement, it cannot be presumed that A1 and A2

conspiracy with one Inticab, who was arrayed as A-3 in this case regarding drug trafficking. In support of his contention, the learned counsel

appearing for the appellant relied upon a judgment of the Hon''ble Supreme Court in KANHAIYALAL Vs. UNION OF INDIA reported in

2008 (4) SCC 668.

Per contra, the learned counsel appearing for the respondents/Accused 1 and 2 would submit that in order to prove the conspiracy, except the

confession statement of the respondents/accused there is no other materials available on record. Apart from that there is no investigation regarding

the confession made by the accused and since the confession was retracted by the accused while they were questioned under Section 313

Cr.P.C., the retracted confession cannot be used against the respondents/accused and the Court below rightly considered the same and acquitted

the accused for the charge of conspiracy. In the above circumstances, there is no reason to interfere with the order of acquittal passed by the

Court below. In support of his contention, the learned counsel appearing for the respondents relied upon a judgment of the Hon''ble Supreme

Court in TOFAN SING Vs. STATE OF TAMILNADU reported in 2013(12) SCALE and contended that the Hon''ble Supreme Court doubted

the ratio laid down in KANHAIYALAL (supra) case and the matter has been referred to the Larger Bench. In view of the same, the judgment of

the KANHAIYALAL (supra) case cannot be followed.

I have considered the rival submissions.

So far as the charge under Section 8(c) r/w 29 of the NDPS Act, the prosecution case was that the respondents/A1 and A-2 along with one

Inticab, who was arrayed as A-3 in this case was a resident of Bombay and he engaged A-1 to hand over 2 kilo grams of heroin to A-2 at

Chennai and on 19.12.1998, A-1 travelled in a Indian Airlines Flight from Mumbai to Chennai along with heroin and went to the house of A-2,

stayed with him, and handover the heroin to A-2, after testing the heroin, A-2 found that the heroin is inferior quality, hence asked A-1 to take

back the same and after calling A-3, A-1 taking it back to Mumbai, at that time he was intercepted by the appellant and seized the heroin.

Thereafter, A-1 has given a confession under Section 67 of NDPS Act and based on that a summons were issued to A-2 and A-2 also similarly

given a confession statement under Section 67 of the NDPS Act. Both the statement were marked as Exs.P31 and P44. The Court below

considered the confession statement of the accused and held that both the statement of A-1 and A-2 are admissible in evidence and relying upon

the same, the Court below convicted the first accused/first respondent under Section 8(c) r/w 21(c) of NDPS Act, and sentenced him to undergo

ten years rigorous imprisonment and to pay a fine of Rs.1,00,000/- (Rupees one lakh) in default to undergo rigorous imprisonment for one year

and found the second accused/second respondent guilty and convicted him under Section 8(c) r/w 21(b) of NDPS Act and sentenced him to

undergo two years rigorous imprisonment and to pay a fine of Rs.15,000/- (Rupees fifteen thousands) in default to undergo rigorous imprisonment

for six months. But, the Court below acquitted both the accused/ respondents for the offence under Section 8(c) r/w 29 of the NDPS Act on the

ground that the appellant did not conduct any investigation on the statement given by A1 and A-2 in Ex.P31 and Ex.P44, and by mere filing of said

statement, Court cannot presume that A-1 and A-2 had conspiracy with A-3 regarding the drug trafficking and commit the offence.

Section 29 of NDPS Act speaks about the punishment of abetment and criminal conspiracy, which reads as follows:-

Punishment for abetment and criminal conspiracy

(l) Whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under this Chapter, shall, whether such offence be or be

not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and not withstanding any thing contained in section

116 of the Indian Penal Code, be punishable with the punishment provided for the offence.

(2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India abets or is a party

to the criminal conspiracy to the commission of any act in a place without and beyond India which

(a) would constitute an offence if committed within India; or

(b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to

constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if

committed within India

It is a settled principle of law that a criminal conspiracy is an agreement between two or more persons to do an illegal act or legal act by illegal

means. If the agreement is not an agreement to commit an offence, it does not amount to conspiracy unless it is followed up by an overt act done

by one or more persons is furtherance of the agreement. The offence is complete as soon as there is meeting of minds and unity of purpose

between the conspirators to do that illegal act or legal act by illegal means. It is not necessary that each conspirators must know all the details of

the scheme, not be a participant at every stage and the conspiracy can be inferred from circumstances.

In the instant case, the prosecution has established that through the confessional statement of A1 and A2 that both were conspired along with

A-3 to commit the offence. The Court below considered the confessional statements of A-1 and A-2 under Section 67 of the NDPS Act and held

that it is voluntary and admissible in evidence and based on the same convicted the accused for other offences. But, acquitted the accused on the

ground that there is no further investigation based on the statement given by the accused. The Hon''ble Supreme Court in KANHAIYALAL case

reported in 2008(4) SCC 668 (supra) has held that the confessional statement recorded by the officer in the course of investigation of a person

accused of an offence under the NDPS Act is admissible in evidence against him and also held that the conviction can be maintained solely on the

basis of confession given under Section 67 of the NDPS Act, and the Hon''ble Supreme Court held as follows:-

In addition to the above, in Raj Kumar Karwal v. Union of India this Court held that officers of the Department of Revenue Intelligence who

have been vested with powers of an Officer-in-Charge of a police station under Section 53 of the NDPS Act, 1985, are not police officers within

the meaning of Section 25 of the Evidence Act. Therefore, a confessional statement recorded by such officer in the course of investigation of a

person accused of an offence under the Act is admissible in evidence against him. It was also held that power conferred on officers under the

NDPS Act in relation to arrest, search and seizure were similar to powers vested on officers under the Customs Act. Nothing new has been

submitted which can persuade us to take a different view.

Even though recently the Hon''ble Supreme Court in TOFAN SINGH Vs. STATE OF TAMIL NADU reported in 2013(12) SCALE has

referred the issue to a larger Bench, in the absence of any authoritative pronouncement by the larger Bench the ratio laid down in

KANHAIYALAL case (supra) is still holds good, and the confessional statement of the accused made under Section 67 of the NDPS Act is

admissible in evidence. In the above circumstances, I am of the considered view that the prosecution has clearly established the conspiracy

between the accused to commit the offence. Hence, the findings of the Court below that a further investigation is required in respect of the

confessional statement given by the accused to prove the conspiracy is not correct. Hence, it is liable to be set aside.

In the result, the Criminal Appeal is allowed and the order of acquittal of respondents for the offence under Section 8(c) r/w 29 of the NDPS

Act is set aside and both the accused are convicted for the offence under Section 8(c) r/w 29 of the NDPS Act.

The Registry is directed to issue notice to the respondents/accused for questioning them regarding sentence, and post the matter on

05.06.2017 for questioning the respondents. While parting with the case, I appreciate the valuable services rendered by Mr.S.N.Thangaraj, the

learned counsel appearing on behalf of the respondents as legal aid counsel. The Secretary, High Court Legal Services Committee is directed to

pay a fee to the learned counsel appearing for the respondents as per rule.