Narasimhan, Prasanna Kumar, C.R. Vasan, Krishnakumar, S. Ganesan and P.T. Joseph vs Central rep. by The Senior Intelligence Officer, Directorate of Revenue Intelligence

M. Chockalingam, J.—This judgment shall govern the three appeals in C.A. Nos. 183, 199 and 211 of 2000.

The learned Counsel for the appellants 2 to 4 in C.A. 183/00 would represent that the Senior Counsel Mr. B. Kumar is in abroad, and hence,

the case has got to be adjourned. The Court is not inclined to grant adjournment, since the accused is in jail.

The appellants in all the three appeals who stood charged and tried under S. 8(c) r/w 29 and 22 of N.D.P.S. Act and convicted under those

provisions and sentenced to undergo R.I. for 10 years and also to pay a fine of Rs. 1,00,000/- each and in default of payment of fine to undergo 2

years R.I. have brought forth these appeals.

The facts necessary for the disposal of these appeals can briefly be stated as follows:

(a) P.W.1 Paul Mohammed, Senior Intelligence Officer had filed a complaint against the appellants/accused 1 to 6 and the absconding accused

Suresh De''Silva and A. Lakshmanan under the said provisions stating that they entered into a criminal conspiracy during September, October and

November, 1997 at Chennai to procure Mandrax Tablets and export the same to South Africa. On 13.11.97, the said attempt to export the said

contraband was foiled by the respondent/complainant. The consignment and the seizers of the contraband concealed therein were taken out. He

pursued further investigation and unearthed the involvement of the accused along with the said absconding accused. On 13.11.97, P.W.1 had

received information, which was forwarded to his Superior Officer. A team of Officers rushed to the Air Cargo Complex, Anna International Air

Port, Chennai, where they met Mr. Dinesh, a Cargo Assistant for Lufthansa Airways. When he was questioned about Ex.P4 Air Bill in question,

he informed that the consignment had already been loaded in the Lufthansa Aircraft and the plane was ready for take off. Pursuant to the orders of

the said Senior Intelligence Officer, the consignment of 14 cartons were off loaded from Lufthansa Aircraft for the purpose of checking. The other

documents connected thereto such as Ex.P2-cargo loading sheet, Ex.P5-manifest of the Lufthansa Cargo and shipping bill were taken possession

by P.W.1. On scrutiny of those documents, it was found that the name of the exporter was M/s. Sriram Leather Exports at No. 99, Dr.

Muthulakshmi Road, Porur, Chennai and the name of the importer was M/s. Arnade Brothers, Johannesburg, South Africa. P.W.1 Paul

Mohammed seized 382.043 Kgs of Methaqualone Tablets (Mandrax Tablets) along with other goods from the said 14 cartons. The seizer

mahazar of the cartons is marked as Ex.P1. The said contrabands were kept and concealed amongst leather jackets in 10 packages of the total 14

packages. P.W.1 prepared a report under Ex.P6.

(b) P.W.2 Sankara Narayanan, Intelligence Officer examined P.W.6 Udayakumar Chelliah, Manager of Dart Express and recorded his statement

under Ex.P29. The documents produced by P.W.6 were marked as Ex.P30. oN 15.11.1997 P.W.2 went to No. 1, Barathiyar Colony, Ashok

Nagar and searched the house of A-4 in the presence of witnesses and seized the items under Ex.P16 mahazar. P.W.3 Venkatramani, Intelligence

Officer examined P.W.5 T.V. Shanmugam of Aminjikarai and recorded his statement under Ex.P31. On 15.11.97, P.W.3 along with other

officers searched the house of A-4, and based on the statement of A-4, he was arrested on 16.11.97 under Ex.P33 arrest memo. P.W.3

submitted his report under Ex.P19 to his Superior Officer. P.W.4 R. Ganesan, Proprietor of Sri Ram Leather Exports has given a statement under

Ex.P34. P.W.7 Ebenezer was examined by D.R.I. Officers and he gave a statement under Ex.P37. P.W.7 handed over the blank shipping bills

which were marked as Ex.P36. On 15.11.97 P.W.8 Christy examined A-1, and the statement given by A-1 was recorded by P.W.8 under

Ex.P38. Based on his statement, A-1 was arrested by P.W.8, and the arrest memo was marked as Ex.P40. The report of P.W.8 is marked as

Ex.P22. P.W.9 B.Kumar, Senior Intelligence Officer, authorised Chandrasekaran under Ex.P41 to search the United Aviation Office of the

absconding accused Suresh De''silva, and the search warrant is marked as Ex.P43. Ex.P42 is the report of Gunabalan, another Intelligence

Officer. The mahazar prepared at the search is marked as Ex.P44. The photo of Suresh D''Silva under Ex.P45 was seized under a mahazar.

P.W.9 issued Ex.P46 warrant to search the house of A-2. On 17.11.1997 A-2 appeared before the D.R.I. Office and gave a statement under

Ex.P49, on the basis of which A-2 was arrested under Ex.P50 arrest memo. A-3 surrendered before the Court. On petition, A-3 was taken for

police custody. The statements given by A-3 are marked as Exs.P54 and P55. On 16.11.97, P.W.10 Santhanakrishnan went to the house of A-6

and examined him. A-6 gave a statement. The statement of A-2 is marked as Ex.P60, on the basis of which A-2 was arrested under Ex.P61 arrest

memo.

(c) P.W.11 Mohanraj, father of A-2, gave a statement under Ex.P49. P.W.12 S. Gunabalan, Intelligence Officer recorded the statement of P.W.4

under Ex.P34. P.W.12 also examined P.W.16 J. Ashok Kumar, driver and owner of a Van and recorded his statement under Ex.P63. On

15.11.1997, P.W.12 examined A-5 and recorded his statement, on the basis of which A-5 was arrested on 16.11.1997 under Ex.P65 arrest

memo. One K. Ravichandran, clerk of Dart Express Air Cargo was examined and he gave a statement under Ex.P66. P.W.12 prepared a report

under Ex.P21. P.W.15 S.Baskar, a clerk in the Dart Express godown gave his statement under Ex.P79 on 15.11.97. The statements given by

P.W.17 Dillip Kumar, P.W.18 Venkatesan and P.W.19 Srinivasan are marked as Exs.P83, P85 and P88 respectively. P.W.23 Lakshmanan,

Director of Euro Leder Fashion Company Ltd., has given a statement under Ex.P92. The statement given by P.W.24 Mallika Arjuna Rao,

Manager in Shine Travels Cargo (P) Ltd., is marked as Ex.P94, and the documents submitted by him are marked as Exs.P95 and P96. The

statements given by P.W.25 Sathiqu Ali and P.W.26 Ravi Rajan are marked as Exs.P98 and P100 respectively. The samples drawn under

Exs.P40 to P59 at the time of seizure were sent for chemical analysis through the Magistrate''s Court concerned. P.W.28 Subbulakshmi, who did

the chemical analysis of the said samples, prepared a report under Ex.P102. After analysis, it was confirmed that the seized contraband tablets are

Mothaqualone (Mandrax), which is a psychotropic substance. P.W.30 Balakrishnan, Intelligence Officer went to the house of A-2 and seized the

Car under Ex.P105 mahazar in the presence of witnesses. P.W.30 also seized the R.C. Book of the Car under Ex.P106. He sent a special report

under Ex.P107. The statements given by P.W.29 C.R. Suresh and P.W.31 Mrs. Prabharaman are marked as Exs.P103 and P112 respectively.

In order to prove the charges, the prosecution examined 31 witnesses and marked 112 exhibits and 75 material objects. After the evidence of

the prosecution was over, the accused were questioned under S. 313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the

prosecution witnesses. All the accused stated that the case was foisted against them. No defence witness was examined. Only one defence

document was marked. After hearing the rival submissions and scrutiny of the materials available, the trial Court found them guilty and convicted

and sentenced them as stated above. All the aggrieved accused have brought forth these appeals.

Arguing for the appellants in C.A. 183 and 199/00, the learned Counsel would submit that the lower Court has mainly relied on the statement

recorded under S. 67 of the N.D.P.S. Act; that no oral evidence was adduced to prove the nexus of the appellants to the crime in question; that

even the very reading of the statement of the first accused would clearly reveal that he was reluctant to participate in the other part, which

according to the prosecution constituted the crime; that even the said statement would indicate that he was under the compelled circumstances; that

he had no mensrea to commit the crime in question; that even assuming that he had got the knowledge of what was going on, that cannot be

construed that he had got mensrea to commit the offence; that the first appellant had even retracted the statement which was recorded by the

Officials at the earliest opportunity; that even assuming that the confessional statement that was recorded has got to be acted upon, it would not in

any way connect the accused to the crime; that even assuming that the statement was exculpatory, no material was placed by the prosecution in

order to substantiate the same; that it remains to be stated that the statement recorded from the first accused was under coercion, threat and under

exercise of undue influence; that in the absence of any link evidence to corroborate, the prosecution should fail; that the prosecution has not

adduced any evidence to show that the first appellant was ever present at the time when the packing of the contraband was made either, or at the

time of the purchase of the contraband or leather jackets or was in any way connected with the illegal transaction in question; that insofar as the

other appellants were concerned, the respective statements that were recorded under the provisions of the NDPS Act were only exculpatory

statements; that no one has stated in their respective statements that they had got any knowledge or they had participated in the commission of the

crime or have abetted or assisted in any way; that the statement of the second appellant was only a voluntary one; that even assuming that it was a

voluntary one, no knowledge could be inferred about the transaction of Mandrax tablets; that there was nothing mentioned in the statement about

the role played by him in respect of the contraband seized in leather jackets so as to implicate him; that the lower Court has not taken into

consideration the evidence of P.W.11, the father of the second appellant; that equally the statement recorded from the third appellant also did not

speak about any knowledge that he had got at any point of time either before or at the time of commission of the offence; that he was only an

employee of the main accused; that there is no evidence to show that he had got any monetary benefits; that likewise the involvement of the fourth

appellant was very limited and that too without any knowledge whatsoever; that it is pertinent to note that the third appellant has surrendered

himself before the Special Court for NDPS; that during the police custody, a statement of the fourth appellant was recorded, and hence, no

evidentiary value could be attached to the same; that admittedly, there was no other material or evidence to connect the fourth accused in the

crime; that a scrutiny of the evidence would clearly make it clear that the appellants 3 and 4 have employed themselves only in order to export the

medicine used for the sexual activities by evading customs duty; that the main accused are still absconding; that in the absence of any link to

connect the accused with the main accused, who are absconding, the lower Court should have acquitted the accused; and that the prosecution has

thoroughly failed to establish the theory of conspiracy and has also not proved the charges levelled against the appellants/accused.

Arguing for the appellant/A-4 in C.A. No. 211/2000, the learned Counsel interalia would submit that the statement recorded by the Officials

and relied on by the lower Court for finding the fourth accused guilty was not a confessional statement at all; that nowhere the fourth accused has

admitted the guilt in the course of the said statement; that there is no material available to show that the appellant was ever informed that what was

packed in his house contained the psychotropic substance; that even assuming that the prosecution has proved that the packing was done in his

house, except the so called statement recorded under S. 67 of the NDPS Act, the prosecution has not produced any material to connect the fourth

accused to the crime; that the prosecution has not proved that the material allegedly recovered from the house of the fourth accused was the

remaining material after using the same in packing which was recovered at the Air Port; that the said fact was not proved by the prosecution; that

no material is available to the prosecution to pointing the fact that the appellant was the member of the alleged conspiracy, and thus without any

connecting material to the crime, the lower Court has erroneously found that the fourth accused is a conspirator, and apart from that, he was also

involved in the crime in question; that it remains to be stated that the co-accused have retracted their statements, and while so, the statements of the

co-accused which were all retracted, cannot form basis for a conviction; that the prosecution has neither proved the conspiracy nor the knowledge

nor the involvement of the fourth accused in the crime, and hence, the lower Court should have acquitted him outright, and therefore, the appeal

has got to be allowed.

Countering to the above contentions of the appellants'' side, the learned Special Public Prosecutor Mr. P.N. Prakash would submit that all the

three appeals are bereft of merit; that it is true that the prosecution has relied on the statement recorded from the accused under S. 67 of the

NDPS Act, but it has been relied on by the prosecution only a corroborative piece of evidence; that the prosecution has marshalled number of

witnesses who have categorically spoken to each and every fact which would connect the accused to the crime; that they also recovered material

objects which would also clinchingly point to the crime of the accused; that it is not a case where the statements were recorded either under threat

or coercion or anything; that when the appellants were arrested and produced before the Magistrate concerned, no complaint of harassment was

brought forth, which would be indicative of the fact that all the statements recorded by the Officers from the accused were voluntary; that all the

facts spoken to in the confessional statements by independent evidence have been proved, and under such circumstances it would be highly

incorrect on the part of the appellants to state that the prosecution has relied on the confessional statements recorded under S. 67 of NDPS Act,

as if there is no independent evidence to prove the guilt of the accused; that the lower Court only on the careful scrutiny of the evidence available

has come to the correct conclusion and found the accused guilty, and hence, the judgment of the lower Court has got to be sustained.

As seen above, one Suresh De''Silva and A. Lakshmanan shown as absconding accused and the appellants herein who were ranked as A-1 to

A-6 before the trial Court, pursuant to a criminal conspiracy during September, October and November, 1997 at Madras, to procure Mandrax

Tablets and export them to Johannesburg, South Africa, attempted to export the said contraband originally amongst the cotton bales, and since

they failed in their attempt due to the exercise of the strict vigil by the Officials, they attempted to export the said contraband by concealing it

amongst leather garments with a fictitious name Shriram Leather Export of Porur through Dart Express by its sub-agent M/s.United Aviations. A

Senior Intelligence Officer, Directorate of Revenue Intelligence (D.R.I), Madras examined as P.W.1, on receipt of an information on 13.11.1997

afternoon that the contraband of 14 cartons was about to be exported in the name of Shriram Leather Exports Co., to Johannesburg, South Africa

by Lufthansa Air Craft. P.W.1 prepared Ex.P1 report and sent to his superior and obtained direction. When he proceeded to the Air Port, he was

informed by the Lufthansa Cargo Office that the said consignment had already been loaded in the Air Craft, which was in its take off stage.

Immediately P.W.1 proceeded and asked the Officers of the said Air Craft to off load the consignment, which was accordingly done. The Airway

Bill, cargo loading sheet and cargo manifest and shipment bill were all marked as Exs.P3 to P5 and P35 series respectively. After this consignment

was off loaded all the 14 cartons were examined in the presence of P.W.27 and two other witnesses. These 14 cartons were marked as M.Os.1

to 14. Out of this 14, 10 were numbered as 1 to 10, but out of the other 4 two were numbered as 2 and 12. When the 10 cartons numbering 1 to

10 were opened in the presence of the Officials, each contained 6 leather jackets and also a small carton each. The plastic covers contained

Mandrax tablets which were marked as M.Os.25 series to 34 series. The samples were taken for analysis. Accordingly, they were analysed. As

per the test report marked as Ex.P102, the contraband seized are found to be Methaqualone, and its commercial name was Mandrax. The lower

Court has thoroughly discussed the above factual position and has clearly found that what was seized by P.W.1 in the presence of P.W.27 and

another witness which was exported in the name of Shriram Exports of Porur was psychotropic substance. At this juncture it has got to be pointed

out that this part is not disputed by any one of the appellants before this Court.

The learned Counsel appearing for the appellants with vigour and vehemence would urge that what was available in the hands of the

prosecution before the lower Court was only the statement recorded from the accused under S. 67 of the NDPS Act and nothing else, and even

assuming those statements are true and genuine, they were not corroborated by any material or by any piece of evidence, and in the absence of the

same, the lower Court should have outrightly rejected the prosecution case. After careful consideration of the available materials, the Court has to

necessarily disagree with the said contention. After the seizure was made, the Officials of the Department have directly proceeded to the Dart

Express, through whom the 14 cartons that contained the contraband were about to be exported by the said Air Craft and recorded the statement

of P.W.6, who was the Manager of the said Dart Express. In the course of evidence, P.W.6 has specifically spoken to the effect that the said Dart

Express was one of the approved agents of Lufthansa Air Craft, and M/s. United Aviation was one of their sub-agents. The fact that A-5 was an

employee of the said Dart Express was not disputed by A-5. A-6 has not only identified him, but also has deposed that it was A-5 who introduced

M/s. United Aviation to be appointed as its sub-agent. It is pertinent to note that the consignment in question was sent to the Air Port under Ex.P4

Airway Bill. The prosecution has marked through P.W.1, Ex.P30 series-records which would be indicative of the fact that A-5 was dealing with

the sub-agent United Aviation. From the said documents, the fact that the third accused was in charge of the Shipping Department of United

Aviation has also been proved. It remains to be stated that Ex.P30(d) letter has been signed by A-3 on behalf of the said United Aviation. It would

be clear from the evidence of P.W.7 that on 11.11.97 afternoon, it was A-3 who brought the export documents and requested P.W.7 to make the

necessary arrangements for the export. Since the Customs House Agent was not available, A-5 prepared the export documents by using the said

signed blank export forms. On the morning of 12.11.97, the goods were taken by A-3 to the Dart Express godown. On 12.11.97, when P.W.15

was in-charge of the Dart Express godown, these 14 cartons containing all the contrabands were unloaded from a van. When he informed that

these goods could not be kept without the proper invoice, it was A-5 who immediately informed him by phone that the goods belonged to the sub-

agent and that regular entry should not be made. It was A-6, who put the numbers in the parcels. At this juncture, it has got to be pointed out that

out of 14 cartons containing the contrabands were given Serial Nos. 1 to 10, and the remaining 4 were not numbered, but they were taken to the

Air Port for the process of loading. P.W.16 was the Driver of the Van in which all the 14 cartons were taken to the Air Port. He has categorically

stated that A-3 has accompanied him at that time. From the above part of the case through the evidence adduced by the prosecution and the

proved facts, it could be inferred that A-3, A-5 and A-6 without being participants to a conspiracy could not have done the acts narrated above.

The prosecution has placed evidence to prove the fact that it was A-5 who placed orders for purchase of leather jackets under Ex.P91

invoice. 128 leather jackets were sold for Rs. 1,23,700/-, and the same has also been delivered directly to A-5, according to the evidence of

P.W.23. It is pertinent to note that the leather jackets so ordered and purchased by A-5 have been used for the purpose of concealing the

contrabands in question. The said witness has identified A-5. This particular fact of ordering of the leather goods by A-5 and delivery of the same

is not disputed by A-5.

The specific case of the prosecution was that Suresh De''Silva and Lakshmanan absconding accused concealed the contraband amongst the

fabrics in a fictitious name Maheswari Exports, Karur through M/s.Inter Mode Freight System run by A-1 and his family. The very reading of the

statement given by A-1 and recorded by the Officials would clearly indicate that he has categorically made admission to the offences committed by

him. He would plead that he has done under the threat and compelled circumstances. It is not a case where he could avail the defence available

under S. 94 of Indian Penal Code. As rightly pointed out by the learned Special Public Prosecutor, he has failed to prove the twin test which has

got to be applied for taking defence under S. 94 of IPC. In order to raise such a defence, he should not have voluntarily joined and he should be

under the threat of instantaneous death. Needless to say, A-1 though had sufficient time to inform the alleged threat even assuming to be true, to

the lawful authorities, has not done so and has not satisfied the test found for the application of the defence under S. 94 of I.P.C. From the very

reading of the statement given by A-1, it would be abundantly clear that he himself has spoken about his nexus to the crime in question.

Insofar as A-4 is concerned, the Court is unable to agree with all or any one of the contentions put forth by the learned Counsel for the

appellant/A-4. It is not only the statement that was recorded from him by the Officials, but also it is not the case of A-4 that he was under any

compulsion or threat to give such a statement, and it goes without saying that it was a voluntary one. Nor he complained anything about the same at

the time when he was before the Judicial Magistrate (Economic Offences) concerned. What are all stated by the appellant/A-4 is that he had no

knowledge about the contents, and he was under the impression that it was only a medicine. Nowhere he has stated anything in his statement

connecting him to the crime. The learned Special Public Prosecutor brought to the notice of the Court that the prosecution by suffice evidence has

proved that it was only at his premises, the contrabands were packed. After the statements were recorded, incriminating materials namely the

instruments for packing like cutting player and the remainder of the straps what were used have been seized from his place. A comparison of the

recovery of the material objects namely the straps with the boxes that where recovered in the Air Port containing the contraband would clearly tally

with each other. Under such circumstances, it would be futile on the part of A-4 to state that he had no knowledge about what was going on in his

premises. Thus, from the available evidence, it would be clear that these contrabands which were contained in 10 cartons and which were actually

concealed in leather packages were attempted to be exported in the name of a fictitious Company, and without a conspiracy though not proved

with direct evidence, but proved with the proved facts, the said acts could not have been done.

So far as A-2 is concerned, except the statement recorded by the Officials, no material is placed before the lower Court. The statement of the

co-accused is not the substantive piece of evidence. From the statement recorded from A-2 nothing could be inferred that he had got any

knowledge as to either the conspiracy or the commission of the crime. Under such circumstances, the Court is of the considered view that the

charges levelled against A-1, A-3, A-4, A-5 and A-6 have been proved beyond reasonable doubt, and the judgment of the Court below has got

to be affirmed in their regard. Insofar as A-2 is concerned, the Court is of the view that in view of the lack of evidence and in view of the

insufficiency of evidence, it would be unsafe to convict him, and hence, A-2 is entitled for an acquittal of the charges levelled against him.

The learned Counsel for the appellants brought to the notice of the Court that the occurrence has taken place on 13.11.1997 according to the

prosecution, but A-6 was terminated on 12.11.1997 as evidenced by Ex.D1; and that he had no connection to the crime in question. The Court is

of the firm view taking into consideration that the offence could not have been committed without a conspiracy being hatched and the process was

going on for a particular point of time, that this termination of A-6 as if on 12.11.1997 as found under Ex.D1 was nothing but an intervening

circumstance. The Court is of the opinion that Ex.D1 would have been brought forth to serve the purpose of A-6 which has got to be rejected.

The learned Counsel for the appellants would submit that the default sentence imposed on the accused has to be reduced. The lower Court has

awarded two years R.I. in default of payment of fine. In view of the facts and circumstances of the case, the Court is of the view that the default

sentence awarded by the lower Court has got to be reduced to 6 months R.I.

In the result, the criminal appeal in C.A. No. 183 of 2000 is allowed in part, setting aside the judgment of conviction and sentence imposed by

the lower Court on the second appellant/A-2. The second appellant/A-2 is acquitted of the charges against him. A-2 is directed to be set at liberty

forthwith, if he is not required in any other case. 18. The default sentence of 2 years R.I. awarded by the lower Court is modified, and in default of

payment of fine of Rs. 1.00 lakh each, A-1, A-3 to A-6 shall undergo R.I. for six months. C.A. No. 183/2000 in respect of A-1, A-3 and A-6,

C.A. No. 199/2000 and C.A. No. 211/2000 are dismissed with the above modification.