Mohammed Rizwi and Ameer Sultan vs State

Rengasamy, J.—This appeal arises from the conviction and sentence of the learned III Additional Session Special Judge, City Civil Court, Madras, in C.C.No.75 of 1992 dated 23.9.1993, for the offence u/s 8(c) read with Section 21 of the Narcotic Drugs & Psychotropic Substances Act, 1985, (hereinafter to be referred to as Act) to undergo rigorous imprisonment for 10 years and also to pay a fine of Rs. 1 lakh, in default to undergo further rigorous imprisonment for 2 years. The case of the prosecution is as follows:-

P.W.6 was the Inspector of Police from 14.8.91 to 16.1.93 in narcotics Intelligence Bureau, Madras. On 28.5.92 at about 2.30 p.m., he received a message that two persons by names Mohammed Rizwi and Ameer Sultan, staying in Room No.105, Dheenshaw Lodge, Purasawakam, Madras, were in possession of the narcotic substance, heroin. He immediately sent an intimation Ex.P-15 to his superior officer P.W.7, the Deputy Superintendent of Police of Narcotics Wing, informing the message and also his immediate departure to the place as he had no time to get the search warrant or the authorisation. He, along with the Sub-Inspectors of Police John Rose, Bhagyaraj, Kalidas and Ali Basha and Head Constables, altogether 7 persons, proceeded to Dheenshaw Lodge by about 04.15 p.m. and met the Supervisor of the hotel, P.W.I, informing his identity and the purpose for which he came there. P.W.I promised to cooperate with him and accompanied the police party along with another employee of the hotel, to Room No. 105. When the door was knocked by P.W.6, first accused opened the door and second accused was arranging certain things in M.O.I suitcase. On seeing them, both the accused tried to escape from the room, but there was no way for it. P.W.6 revealed his identity and informed them that as he wanted to make a search of the house, whether they wanted to be produced before any gazetted officer or Magistrate to search them. They said that they need not be taken to anywhere and the search could be conducted. Thereafter P.W.6 searched the room and the suitcase M.O.I was kept near the leg of the cot. P.W.6 opened the suit case and found inside a cardboard box M.O.2 intended for packing Usha Fan. Inside M.O.2 there were five polythene packets and certain polyester cloths. M.O.3 are the polyester cloths and M.O.4 is the polythene cover of the packets. P.W.6 opened the polythene cover and found inside M.O.5 a brown colour wrapper within which M.O.6 brown sugar or heroin, which is a narcotic substance, was kept. In the same suitcase, further below, there were ever silver plates M.O.7 series and beneath them some were more polyster cloths M.O.8, under which four packets covered by polythene cover, were found. Within the polythene cover M.O.10, the brown paper was was found within which M.O.11 brown sugar was kept. So, altogether there were 9 packets of brown sugar, each weighing 1 Kg. P.W.6 seized the suitcase and the contents therein under a Mahazar Ex.P-1, signed by P.W.I, the employee of the Lodge Azhagan and also these accused. P.W.6 took two samples weighing 5 grams each in all these 9 packets and these samples were packed and N.I.B. seal was affixed in the presence of the accused and P.W.I. The accused were informed that they were arrested for the possession of narcotic drug, viz. Heroin. In the contraband packets and also in the sample packets, the signature of the accused were obtained. The accused and the articles seized, were brought to the N.I.B. Police Station and P.W.6 immediately prepared a report u/s 57 of the Act mentioning about the seizure of the articles. The report, Ex.P-16, was sent to P.W.7, the Deputy Superintendent of Police. He also registered the crime and prepared the First Information Report Ex.P.-17. On receiving the report Ex.P-16, P.W.7 took up the investigation. He visited the room where the contraband was seized and prepared a plan Ex.P-19 and examined the witnesses. The articles seized were sent to the 14th Metropolitan Magistrate on 29.5.92. But as the Magistrate did not receive the articles for the reason that the Special Court has to investigate the case, the articles were handed over to the City Civil Court, Madras, with a request under Ex.P-7 to send the 9 sample packets for chemical analysis. The Special Judge sent the sample packets with a covering letter Ex.P-8, to the Forensic Laboratory for chemical analysis and P.W.4, the forensic expert, after examining all the samples, found that they contained the Di-Acetyl Morphine. Ex.P-9 is his report. On the confession of the first accused, his passport M.O.12 was seized from P.W.2, the travel agent. The investigation revealed that the first accused was previously staying in the lodge of P.W.5 on several days from November 1991 onwards. After completing the investigation, P.W.7 filed the charge-sheet against these appellants. The appellants were questioned u/s 313 Cr.P.C. for the incriminating circumstances found against them in the evidence of the prosecution witnesses. The appellants denied their complicity in the crime. The learned III Additional Session Judge, who analysed the evidence, has found that the guilt of the accused was proved for the offence u/s 8(c) read with Section 21 of the Act and dealt with them in the manner said above.

The learned counsel Mr. Madanagopal, appearing for the appellants/accused, would contend that the prosecution had not complied with many of the mandatory provisions of the Act in this case and the evidence of the eye-witnesses also is bristled with material contradictions, leading to irreconcilable doubt as to the prosecution case and therefore, the Court below has erred in convicting the appellants. Let me first refer to the alleged non-compliance of law pointed out by the learned counsel for the appellants.

According to the learned counsel, u/s 42 and 53 of the Act, the Central Government and the State Governments may invest the powers of search, seizure and investigation for the offences under this Act by notification and only such officers, who were invested with powers to search, seize and investigate alone, are entitled to take cognizance of the offence committed under this Act and on 28.5.92, the police officers, not below the rank of a Deputy Superintendent of Police, were not empowered to search, seize and investigate the offences under this Act and therefore P.W.6, the Inspector of Police had no powers to search the appellants and seize the contraband and the whole search and seizure was illegal. According to the learned counsel, only in October 1992, the notification was issued by the Government of India empowering the Inspectors of Police also to investigate the crimes under the Act and as this search was conducted in the month of May 1992, on which data there was no authorisation or power to P.W.6, the search was illegal. But, P.W.6 has deposed in his evidence that he was authorised by P.W.7 to conduct the search and on his authorisation, he proceeded to conduct the search in Dheenshaw Lodge. Ex.P-15 is the intimation sent by P.W.16, the Inspector of Police, to P.W.7, the Deputy Superintendent of Police, about the intimation he received and P.W.7 says that on the back of this intimation, he made an endorsement Ex.P-18 for action. According to the learned Public Prosecutor, this end statement by P.W.7 will amount to authorisation given by the Deputy Superintendent of Police, who is empowered to investigate under the Act, authorising his subordinate to conduct the search and therefore, there is nothing illegal in the search made by P.W.6. But there is nothing to show in the evidence that P.W.7 made endorsement Ex.P-18 directing for the action before the search was conducted by P.W.6. Ex.P-15 is not the letter of request to the Deputy Superintendent of Police for authorisation to conduct the search. On the other hand, Ex.P-15 reads that as Inspector of Police received the message about the possession of the contraband in the hotel and as he found no time either to get the search warrant from the Court or to get the authorisation, he was rushing to the place. Therefore, immediately despatching the message Ex.P-15 to his superior officer, P.W.6 proceeded to Purasawakkam to conduct the search. It is not the evidence of P.W.6 that he received Ex.P-18 direction from the Deputy Superintendent of Police before he conducted the search. Therefore, even before he received the direction from his superior officer, P.W.6 had conducted the search in Room No.105 in Dheenshaw Lodge.

Now, it has to be found out whether this action of the Inspector of Police P.W.8 has the sanction of law. u/s 102 Criminal Procedure Code any police officer may seize any property which may be alleged or suspected to have been stolen or which may be found under circumstances which create suspicion of the commission of any offence. This is an inherent power under the Criminal Procedure Code to every police officer to seize any property connected with the commission of any offence irrespective of the question whether it falls under the Act or any other special enactment.

The possession of the Heroin powder is an offence under the said Act. If a contraband or a property connected with a crime is being transported or kept in the very presence of a police officer, the police officer cannot remain idle or keep his eyes closed as he is not empowered to investigate the offence. Investigation is different from seizure. As a matter of fact, this aspect has been clarified by the Government of India, Ministry of Finance, by their letter dated 13.5.1988 to all the State Governments with reference to the powers of the police officers u/s 53(2) of the Act in connection with the offences under the Act. I shall give the extract of the letter, below:

F.No.664/41/88-OPIUM

GOVERNMENT OF INDIA

MINISTRY OF FINANCE

(DEPARTMENT OF REVENUE)

New Delhi, the 13th May, 1988,

To

The Chief Secretary (All State Government/

Tamil Nadu, Madras. Union Territories)

Sir,

Sub: Investigations into drug offences by the Police Officers under the Narcotic Drugs & Psychotropic Substances Act 1985 - Regarding.

Under Section 53 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (extract of which is enclosed) the Central and State Governments have been empowered to authorise their Officers to exercise the powers of an Officer-in-Charge of a Police Station for the purpose of investigation of the offences under the aforesaid Act. Sub-Section (2) of Section 53, however does not mention specifically the officers of the police department to be authorised in this behalf by the State Governments, while officers of State Excise, Revenue and Drug Control have been specifically mentioned for being authorised. The reason for not including the officers of the police department in Sub-Section (2) of the aforesaid Section was that the police officers by virtue of their inherent powers for investigation into ''cognizable'' cases stand authorised under the Cr.P.C.1973 to investigate into drug offences cases also (ail offences under the Narcotic Drugs and Psychotropic Substances Act 1985, notwithstanding the provisions of Cr.P.C.1973 have been defined as cognizable offences). As by virtue of Section 5 of the Cr.P.C. 1973, the provisions of the same are widely applicable to different areas, namely, seizure, search, arrest, conducting of investigation, appeal etc, it is considered that there was no necessity to specially authorise police officers for investigation under the N.D.P.S. Act 1985. The general provisions contained in Cr.P.C. on investigation matters are mutatis mutandis applicable to the narcotic drugs and psychotropic substances offences. Moreover Sub-Section (2) of Section 53 envisages that the State Government may invest any class of such officers with the power of an officer-in-charge of a Police Station for the investigation of offences. For avoidance of any doubt, the police officers of suitable category could also be authorised for the investigation of offences, under the N.D.P.S. Act 1985.

It has been brought to the notice of the Central Government that the Courts in certain States have dropped the proceedings in such cases where investigation was conducted by Police officers on the ground that such officers were not authorised by the Governments u/s 53 for conducting of investigations. Such stands of the Courts are not in conformity with the legal position, as explained in the preceding paragraph.

In view of the position explained above, it is requested that appeals against the orders of the Courts dropping the proceeding on the ground that the police officers were not authorised to investigate the cases u/s 53 ibid may be filed in competent appellate Courts. This Ministry shall be grateful for the particulars of such cases, where the State Governments file appeal.

Therefore, the Central Government was conscious of the inherent powers of the police officers under the Criminal Procedure Code and therefore it is mentioned in this letter that the hierarchy of the Police officers was not given u/s 53(2) of the Act. Only for the purpose of clarification of this aspect, this letter has requested the State Governments to issue notification. In this case, the noteworthy feature is that the investigation has been done by P.W.7, the Deputy Superintendent of Police, who, according to the counsel for the appellants, was an authorised person to investigate the offences under the Act. Therefore, the investigation done by P.W.7 is not questioned by the appellants but the search and seizure by P. W.6 alone is questioned and alleged to be illegal. As Section 102 Cr.P.C. empowers every police officer to seize any property connected with a crime, the Inspector of Police, P.W.6, need not have waited for the permission of his superior officer to conduct the search in Room No.105 of Dheenshaw Lodge, Purasawakam. Hence, the propriety of the search and seizure effected by P.W.6 has the sanctity of law. Mahazar Ex.P-1 has been prepared for the seizure of the articles mentioned therein and the signature of these appellants also have been obtained therein. Their signatures in Ex.P-1 prove their presence in the place of search namely Room No.105, Dheenshaw Lodge, which was given to the second appellant as per the entry in Ex.P-4 in the lodge register Ex.P-3. Even though Room No.105 was taken by the second appellant for his stay, the evidence of P.W.I and P.W.6 discloses that the first appellant also was in that room along with the second appellant when the contrabands kept in M.O.1 suitcase was seized. P.Ws.1. and 6 have spoken about the presence of 5 packets of brown sugar within the cardboard box M.O.2 and 4 brown sugar packets under the eversilver plates within the same suitcase. After the search and seizure was effected by P.W.6, the accused were taken to the N.I.B. Police Station and remanded on the next day. P.W.6 had immediately sent a report Ex.P-16 to P.W.7, the Deputy Superintendent of Police as required u/s 57 of the Act. The learned counsel for the appellants contended that the report Ex.P-16 does not contain the full particulars. Ex.P-17 gives the details of the place of search, date, time, the names of the persons, who were in occupation of the room. With regard to the articles seized and the samples taken by P.W.6 there is annexure to Ex.P-17 giving all details. All the articles seized were forwarded to the D.S.P. P.W.7 and the accused also were sent to him. Therefore, I find no blemish in the search and seizure conducted by P.W.6 and he complied with the provisions of the Criminal Procedure Code, under which he has the inherent powers.

The learned counsel for the appellants contended that u/s 42 of the Act, whenever an information was received by any officer in respect of the offence punishable under the Act, he shall take down in writing and Section 42(2) also directs that the officer taking down information in writing shall forthwith send a copy thereof to his immediate official superior and in this case there is nothing to show that P.W.6 had recorded the information he received and therefore as Section 42 was not complied with by P.W.6, the procedure followed by him is illegal. Section 42 no doubt reads that the information received be taken down in writing but does not indicate whether taking down the message in writing shall be in any particular register or book. The learned Public Prosecutor would argue that under Ex.P-15, which is the message in writing to the Deputy Superintendent of Police, P.W.6 has given the details of message and as he has reduced the message, he received in Ex.P-15, and forwarded the same to the Deputy Superintendent of Police, it will amount to compliance of Section 42(1) of the Act. When that message was reduced to writing Ex.P-15, I also feel that it will amount to the compliance of the direction given in Section 42(1). P.W.7, after seizure, acted upon Ex.P-16 to take up the investigation.

Another infirmity pointed out by the learned counsel for the appellants is that the contraband seized was not sent to the nearest police station as contemplated u/s 52(3) of the Act, but to P.W.7 the investigating officer and this will not amount to compliance of the Section. Section 52(3) reads that every person arrested and article seized under sub-section (2) or Sections 42, 43 or 44 shall be forwarded without unnecessary delay to the officer in charge of the nearest police station or the officer empowered u/s 53. Therefore the contraband and the arrested persons have to be forwarded immediately to the police station or to the officer, who are empowered to investigate u/s 53. Section 53 refers to the officers empowered under the Act. As the Deputy Superintendent of Police is admittedly an officer empowered under the Act, P.W.6 forwarded the materials seized and also the appellants to P.W.7 for further action and there is no contravention of the provision of law.

The learned counsel contended that the contraband seized on 28.5.1992 was sent to the City Civil Court only on 10.6.92 as stated by P.W.3 and as the narcotic substance alleged to have been seized from the accused were kept in the police custody without producing to the Court for more than a week, the prosecution version of seizure is suspicious. P.W.7 in his evidence has stated that on 29.5.92 itself, the seized contraband and also the sample packets were sent to the Metropolitan Magistrate Court under Form No.95 but as the Magistrate returned the articles on 10.6.92 with direction to produce before the Sessions Court, which is the Special Court under the Act, these articles were produced before the Sessions Court on 10.6.92. Even though Form No.95 produced by the prosecution has the seal of the 14th Metropolitan Magistrate dated 29.6.92, the learned counsel for the appellants would contend that there is nothing in writing by the Magistrate in Form No.95 that he was directing the police officer to produce these articles before the Sessions Court and therefore it cannot be believed that the material objects were produced before the Metropolitan Magistrate on the next day itself. As the Form 95 for the production of the articles seized, contains the seal of the Court dated 29.5.92, it has to be taken that the articles were produced before the Magistrate on the next day itself. But, somehow, these articles seem to have been returned by the Magistrate. Otherwise, the articles mentioned in Form No.95 and produced before the Metropolitan Magistrate would not have gone to the City Civil Court. Therefore the evidence of P.W. 7 that the Magistrate returned the articles on 10.6.92 with a direction to produce them before the Sessions Court, appears to be true.

The learned counsel for the appellants pointed out an inconsistency found in the evidence of P.Ws.3 and 4 as to the seal affixed on the samples and according to P.W.3, the clerk attached to the Sessions Court, on the request of the police officer under Ex.P-7 to send the sample packets for chemical analysis, she affixed the Court Seal whereas P.W.4 has stated in his evidence that he found the seal of the N.I.B. on the sample packets, and this discrepancy, according to the learned counsel, is not explained by the prosecution, leading to enormous doubt in the prosecution case. His argument is that some other contraband, not seized from these appellants, might have been sent to the Forensic Lab as the sample received by P.W.4 did not contain the seal of the Court. It is true, there is discrepancy in the evidence between P.Ws.3 and 4. P.W.3 has stated in her evidence that the sample packets which she received from the police contained the N.I.B. seal and removing that she affixed the Court seal. P.W.4, the analyst in the forensic laboratory has stated that he did not receive the sample packets and the officer attached to the Deputy Director would receive the samples. Therefore, the evidence of P.W.4 discloses that it was only in the office of the Deputy Director, the sample packets sent for analysis would be received and they would verify the seals in the packets with reference to the sample seals given in the covering letter.

Therefore, P.W.4 was not the officer who was receiving the sample packets, but he might have received them with the packets when he conducted the test on the substance in the packet. The Deputy Director of Forensic Laboratory would undertake the test only on the request of the Court. Therefore, he would have verified and compared the sample seal affixed in the letter of the Judge, with the seal affixed on the packets to satisfy himself that the packing was not tampered with. Therefore, P.W.4 is not the competent person to speak about the seal as he did not receive the letter of the Court and the packet. As these sample packets were originally affixed with the seal of the N.I.B, when they were sent to the Court, probably the remnants of that seal in the packing cover might have led P.W.4 to say that he found only the N.I.B. seal. Further P.W.4 did not verify the packets or records at the time of his evidence with regard to the seal affixed on the samples. He was referring only to Ex.P-9 his report for the contents of the substance sent for analysis. Therefore, as he was deposing from his memory nearly one year after the test and in the meanwhile he would have conducted test on several samples day today, it would not be possible for him to remember more than a year after the seal on the sample packets relating to this case and therefore we need not give much weight to his evidence, that he found only the N.I.B, seal in the packets.

The learned counsel for the appellants contended that u/s 2(XV) of the Act, opium is defined as a substance of coagulated juice of the opium poppy and any mixture, of the said coagulated juice of opium but does not include any preparation containing not more than 0.2% of morphine and therefore to prove the contraband to be a narcotic drug, there must have been morphine not less than 0.2% in these packets seized, but in Ex.P-9 report the analyst has not stated that percentage of morphine was more than 0.2% and therefore it is not sure whether the substance seized under Ex.P-1 mahazar is a narcotic drug. Ex.P-9, the analyst report, reads that in all the 9 sample packets, the content was the Di-acetyl Morphine. P.W.4 has stated in his evidence that the entire substance was Di-acetyl and therefore he did not give the percentage of the morphine. According to him, the entire morphine was converted to Di-acetyl. In Ex.P-9 also it is given that Di-acetyl morphine is known as the Heroin substance and Di-acetyl morphine is derived from the opium alkaloid morphine. Therefore from Ex.P-9 it is clear that the Di-acetyl morphine found in the sample packets was a derivative from the opium alkaloid morphine and the entire content was the di-acetyl morphine itself. Only if the morphine was mixed with some other substance, the mixture should contain not less than 0.2% morphin to make it a narcotic drug. But the evidence of P.W.4 makes it a narcotic drug. But the evidence of P.W.4 makes it clear that the entire substance was the acetyl morphine. Therefore, it cannot be argued that the substance seized from the appellants does not fall under the category of the narcotic drug mentioned in the Act.

The learned counsel for the appellants pointed out that in the sample packets and in M.O.6 packets, the Crime number is mentioned in red ink and as P.W.I in his evidence has stated that these red ink writings also were made in Room No. 105 Dheenshaw Lodge, it leads to suspicion in the prosecution case as to how the Crime number had been given in the seized articles even before the case was registered by the police. But P.W.6 explained that except the red ink writings, in sample packets and M.O.6, all other details were written in the place where they were seized. The evidence of P.W.6 shows that after the seizure of these substances, they were brought to N.I.B. police station, where the case was registered and F.I.R. was prepared. Therefore, only after coming to the police station, the crime number could have been written on the contraband packets. P.W.I could not have seen when the police officer wrote the crime number in the packets in the police station. As the signature was obtained in this contraband packets from the accused, it appears that P.W.I was thinking that everything written on these packets were done only in the Dheenshaw Lodge. Therefore, it is only a mistake, which will not in any way, affect the prosecution case.

Lastly, the learned counsel for the appellants commented upon the evidence of P.Ws.1 and 4 and according to him, they have stated in their statement u/s 161 Cr.P.C. recorded by P.W.7 that both accused were arranging the packets in the suitcase and it would not have been possible because when they knocked the door, the first appellant was said to have opened the door and therefore, there was no possibility for these two witnesses to see both accused together while arranging the packets within the box, that such a version has been given before the Investigating Officer to implicate the first accused also and therefore, the prosecution case is unbelievable. As the first appellant said to have opened the door when the door was knocked and the second appellant was staying inside the room, P.W.I and P.W.6 could not have seen these appellants together arranging the packets within the suitcase M.O.I. Probably, as both accused were together in the same room with a box containing the contraband, they seem to have stated that both were arranging the packets within the suitcase or probably after ascertaining from these accused as to what they were doing before the door was knocked, P.Ws.1 and 6 might have given this answer. Because of this version in Section 161 Cr.P.C. statement, the whole prosecution case cannot be become false when especially the room booked in the second appellant''s name, was searched in the presence of P.W.I, the hotel supervisor and the signatures of both the appellant''s have been found in the seizure list and also in the contraband seized from the room. Therefore, the evidence of P.Ws.1 and 6 on this aspect cannot be false. At the time of the trial, it appears to have been demonstrated through P.W.I that out of 5 packets of the Heroin alleged to have been kept inside M.O.2 cardboard box only 3 can be kept inside and closed and therefore it is argued for the appellants that the version of P.Ws.1 and 6 that the 5 packets were found inside M.O.2 cannot be true and these appellants have been implicated with the aid of the contrabands seized somewhere. It was demonstrated in the Court below that M.O.2 cardboard box could be closed only with 3 contrabands packets. But it is not the evidence of P.Ws.1 and 6 that M.O.2 cardboard box was kept closed with 5 packets of contraband inside. They have simply stated that in M.O.2 cardboard box, 5 packets were found inside. The polyster closet M.O.3 also was kept with-in the canvass suitcase M.O.I. It was not demonstrated that the 5 contraband packets could not have been kept within M.O.2 cardboard box when it was kept open. Therefore, without closing the upper lid of M.O.2 cardboard box, 5 packets were kept in it and the polyster cloth M.O.3 was kept over it to conceal the presence of the contraband. Therefore, the inability to close the lid of M.O.2 after keeping the 5 contraband packets is not a circumstance to disbelieve the prosecution case. I do not find any material discrepancy in the evidence of P.W.1 and P.W.6 affecting the core of the prosecution. The first appellant is a Sri Lankan national as seen from M.O.2 passport and from the evidence of P.W.5, it is seen that he was frequently visiting India and was staying in the hotel of P.W.5 in Broadway. Both appellants were found in room No.105 of Dheenashaw Lodge on 28.5.92 and as mentioned above Ex.P-14 proves that this room was booked in the name of the second appellant. As the contraband was found in the room in which both the appellants were staying and P.W.I and P.W.6 have stated in their evidence that both the appellants attempted to escape from the room, when the room was knocked, it shows the mens rea in the mind of these appellants. As the narcotic substance was in the room in which these appellants were found staying, and they also tried to escape on seeing the police officer, the court can draw the legitimate presumption u/s 35 of the Act, that they were having the culpable mental state when P.W.6 informed them for the search which he wanted to conduct. As I find no infirmity worth mentioning affecting the credibility of the prosecution case, the Court below was right in finding these appellants guilty under the Sections mentioned above. I find no error in the findings of the Court below. The sentence imposed by the Court below is the minimum sentence prescribed under the Act. Therefore, I find no merit to interfere with the conviction and sentence imposed by the Court below.

In the result, the appeal is dismissed confirming the conviction and sentence of the Court below.