R.V.K. Sekar @ Kumar @ Raja vs The Intelligence Officer Narcotics Control Bureau South Zonal Unit

T. Sudanthiram, J.—The appellant in Crl. A. No. 698 of 2011 is the first accused and the appellants in Crl. A. No. 269 of 2012 are the second and third accused in C.C. No. 19 of 2005 on the file of learned Special Judge for EC/NDPS Act cases, Salem. Totally there are five accused in the case. The first accused was found guilty for the offences under Sections 8(c) r/w 21C, 28, 29, 23 and 27-A of the Narcotics Drugs and Psychotropic Substances Act, 1985 and was convicted for each offence and sentenced to undergo rigorous imprisonment for a period of ten years and also to pay a fine of Rs. 1,00,000/- (Rupees one lakh only), in default to undergo rigorous imprisonment for a further period of 2 = years, under each offence. Accused 2 to 5 were convicted for the offences under Sections 8(c) r/w 21C, 28 and 29 of NDPS Act and each one of them was sentenced to undergo rigorous imprisonment for a period of ten years and also to pay a fine of Rs. 1,00,000/- (Rupees one lakh only), in default to undergo rigorous imprisonment for a period of 2 = years, for each offence. Challenging the said conviction and sentence, accused 1 to 3 have preferred the above appeals and accused 4 and 5 did not prefer any appeal.

The case of the prosecution in brief is that P.Ws. 1, 2, 7, 10 and 11 are the Intelligence Officers attached to Narcotics Control Bureau, South Zonal Unit, Chennai. On 27.07.2004, P.W. 1 received an information over phone about transporting of heroin by the accused and he recorded the said information in Ex. P-1. After getting permission from P.W. 7, on the same day at About 4.30 p.m., P.W. 7 along with P.Ws. 1, 2, 11 and others proceeded to Arakkonam old bus stand. P.W. 1 arranged for independent witnesses, viz., P.W. 8, Village Administrative Officer, Arakkonam and another by name I. Mohamadeen, Village Administrative Officer of Perumoochu Village. On reaching the spot, they kept vigilance.

At that time, the third accused came there first and afterwards, accused 2 and 4 came there. The second accused was carrying a brown/sandal colour rexin bag. The second accused handed over the said bag to the third accused. At About 09.15 p.m., the fifth accused came there and the third accused was handing over the said bag to him. At that time, the officials intercepted them and have introduced themselves. Accused 2 to 5 were informed about their right to be searched before any Gazetted Officer of a Judicial Magistrate and they accepted for the search by the officials themselves. P.W. 1 searched the bag in the presence of witnesses and found that the bag contained nine packets, each packet containing heroin of 1.015 kgs., 1.010 kgs., 1.015 kgs., 1.010 kgs., 1.015 kgs., 1.010 kgs., 1.015 kgs., 1.010 kgs., and 0.150 kgs., totalling to 8.250 kgs.

Samples were taken from the seized contraband. P.W. 2 issued summons Exs. P-7 to P-9 to Accused 2 to 4 and P.W. 11 issued summons, Ex. P-66 to the fifth accused for their appearance at Balaji Hotel. P.W. 2 recorded the voluntary confessional statements of accused 2 to 4 in Exs. P-10 to P-12 respectively. P.W. 11 recorded the voluntary confessional statement given by the fifth accused in Ex. P-67. Subsequently, all the accused were arrested and sent for judicial custody.

On 11.08.2004, P.W. 2 received another information, Ex. P-20, that the first accused in this case, who had also committed offence in another case, was staying in the name of Kumar in Sathkar Hotel, Arms Road, Chennai. P.W. 2 proceeded to the spot along with P.Ws. 10 and 11. P.W. 2 informed P.W. 9, the Manager of the Hotel and asked him to stand as a witness for the search to be made in Room No. 216. P.W. 2 knocked the room and the first accused opened the door. The room of the first accused was searched. No material was seized from the room. A summon was served to the first accused and he appeared before P.W. 11 and a statement, Ex. P-71, was recorded and in Ex. P-71, the first accused has not given any statement implicating himself or incriminating against him. The first accused was arrested by P.W. 11.

In order to prove the case, the prosecution examined P.Ws. 1 to 11 and marked Exs. P-1 to P-78 and produced material objects 1 to 36.

The accused were questioned u/s 313 Cr. P.C. and they have denied their complicity. They did not examine any defence witness.

The trial Court, after analysing the evidence, convicted and sentenced the accused as already stated above.

Mr. R. Vijayakumar, learned counsel appearing on behalf of the first accused/appellant in C.A. No. 698 of 2011 submitted that the name of the first accused is only Sekar and his name is neither Kumar nor Raja. The person, who has been referred in Ex. P-1 information is not the first accused. He would submit that the prosecution has not established that the name of the first accused is also Kumar and Raja and no material is placed by the prosecution in support of it. On the other hand, Ex. P-24, Passport and Ex. P-25 Driving Licence, reveal the name of the first accused only as Sekar. Ex. P-70, the summon was issued to the first accused only in the name of R.V.K. Sekar. The learned counsel further submitted that the first accused did not give any confessional statement while his statement was recorded u/s 67 of the NDPS Act and there is no connecting material to implicate him with the alleged seizure of contraband made from accused 2 to 5. The confessional statement of the second accused does not connect the first accused. The third accused also did not implicate the first accused, while he gave his first statement; but, after he being remanded and custody being taken, Ex. P-11 was recorded from him, in which the third accused has referred the name of Sekar @ Kumar @ Raja, but he did not identify the first accused. Ex. P-11 is not a statement as recorded u/s 67 of the NDPS Act and it is also not admissible, since the third accused was already arrested and remanded to custody. The fourth accused also did not implicate the first accused in his statement and the fifth accused, though he gave the name, he had not identified the first accused.

Mr. Ramesh Kumar Chopra, the learned counsel appearing on behalf of accused 2 and 3/appellants in C.A. No. 269 of 2012, submitted that the alleged seizure of the contraband from accused 2 and 3 should not be accepted, since though independent witnesses were available at the spot, the Intelligence Officers did not take any steps to procure those independent witnesses. But, they have effected the seizure in the presence of P.W. 8, Village Administrative Officer. But P.W. 8 did not identify any one of the accused before the Court. He would further submit that Ex. P-4, mahazar said to have been prepared at the spot, contains the file name and it raises a doubt with regard to the manner in which it was prepared. Though P.Ws. 1 and 2 had stated that A-3 was handing over the bag to A-5, P.W. 7 had not stated so. There are contradictions in the evidence of P.Ws. 1, 2 and 7. The learned counsel further submitted that the statements said to have been recorded from accused 2 and 3 are not voluntary statements.

Per contra, Mr. N.P. Kumar, learned Special Public Prosecutor, submitted that P.W. 1 received information and he had reduced the said information into writing in Ex. P-1. Ex. P-1 reveals the name of all the five accused. On going to the spot, P.Ws. 1, 2 and 7 have noticed accused 2 to 5 at the spot. They have effected the search and seized the contraband in the presence of P.W. 8, Village Administrative Officer. P.W. 8 had identified the accused, but he had not specifically identified the accused by their names. The learned Special Public Prosecutor further submitted that accused 2 to 5 had given their voluntary confessional statements and they have been recorded u/s 67 of the NDPS Act. All those statements have been marked by the prosecution. He further submitted that as far as the first accused is concerned, when he was seen at the hotel room by P.W. 2 and was enquired, he admitted about his involvement in trafficking the contraband seized in this case and the said fact is also mentioned in Ex. P-26 mahazar and in the said mahazar, the first accused has also signed on receiving a copy of it. The statement given by the first accused to P.W. 2 corroborates the statement given by other co-accused, viz., A-2, A-3 and A-5 and all those accused have referred the name of the first accused as Sekar @ Kumar @ Raja. The learned Special Public Prosecutor also submitted that P.W. 9, the Manager of the Hotel, had stated that the first accused was staying in the hotel in Room No. 216 in the name of Kumar.

This Court considered the submissions made on both sides and perused the materials available on record.

P.W. 1 received an information in this case and he had reduced it into writing in Ex. P-1. Ex. P-1 contains the names of five persons being involved in the trafficking of narcotic drug. After that information, P.Ws. 1, 2 and 7 have gone to the spot. They have categorically spoken about the presence of accused 2 to 5 at the spot and about the seizure of the contraband, i.e., 8.250 kgs. of heroin. The third accused was holding the bag and he was handing over the said bag to the fifth accused. A-2 and A-4 were also present there. Ex. P-4 mahazar was also prepared, in which all the accused 2 to 5 have signed. Nothing has been brought out in the cross-examination of P.Ws. 1, 2 and 7 to discredit their evidence regarding the search and seizure.

According to the learned counsel for the accused, though independent witnesses were available at the spot and they have not been called upon to stand as witnesses, it does not affect the version of P.Ws. 1, 2 and 7, since they have already arranged for the witnesses, P.W. 8 and another. The prosecution had established the fact that the contraband-heroin was seized from accused 2 to 5.

As far as the first accused is concerned, he was not present at the time of seizure of the contraband. He was located subsequently in a hotel room. When P.W. 2 went and knocked the door, the first accused opened the door. At that time, the Hotel Manager P.W. 9 was also present. The first accused was enquired and he had admitted at that time before P.W. 2 his involvement in the seizure of 8.250 kgs. of heroin from Old Bus Stand, Sholingur Road, Arakkonam, that he had arranged for the drug to be brought from Mumbai and the drug was to be taken over by one Ramesh and he also arranged for onward transport from Arakkonam to Rameswaram and then to Srilanka. The said statement of the first accused is also recorded in the mahazar, Ex. P-26, prepared by P.W. 2 and it has been acknowledged by the first accused himself and other witnesses. The statement made by the first accused to P.W. 2 being reduced into writing in the mahazar Ex. P-26, it is to be taken as a voluntary statement given by the first accused and it becomes admissible in evidence. Of course, he had not given any confessional statement as per Ex. P-71. The statement, which is already recorded in Ex. P-26 is corroborated by the statement given by other co-accused, A-2 and A-5. A-2 and A-5, in their confessional statements, implicated the first accused.

This Court is not taking into consideration the statement, Ex. P-11 given by the third accused, though it implicates the first accused, since Ex. P-11 was recorded after the third accused being arrested and remanded to judicial custody and thereafter, taken into custody by the officials.

The contention of the learned counsel for the first accused that the name of the first accused is Sekar and he is neither Kumar nor Raja, is rejected, since, while he was staying in the hotel at Chennai, he has given his name as Kumar. Even otherwise, the name of Sekar is mentioned in Ex. P-1 information and it is established that the name of the first accused is Sekar. Hence, the prosecution has proved the case against the first accused also.

In the result, the conviction and the sentence of imprisonment as well as the fine amount imposed on the appellants/accused 1 to 3 are confirmed. None of the accused has paid the fine amount. They are languishing in jail for more than eight years and they are not in a position to pay the fine amount. In the said circumstance, the default sentence of imprisonment imposed on all the accused 1 to 5, though accused 4 and 5 have not preferred any appeal, is reduced to one month rigorous imprisonment for each default in payment of fine. Except the above modification with regard to the sentence of imprisonment in default of payment of fine, both the Criminal Appeals are dismissed. Consequently, M.P. No. 1 of 2012 is also dismissed.