TMI Blog2001 (4) TMI 915X X X X Extracts X X X X X X X X Extracts X X X X ..... he third charge against A-1 was under Section 2(viii)(a)(iii) of NDPS Act for the offence punishable under Section 27-A of NDPS Act alleging that A-1 directly or indirectly financed A-3 to A-5, who were indulging in illicit trafficking of Psychotropic Substance. The fourth charge was against A-1, A-2 and A-6 for abetting the criminals A-3 to A-5 under Sections 22 and 29 of NDPS Act. The 5th charge was against A-1, A-2 and A-6 for abetting the criminals A-3 to A-5 for the offences punishable under Sections 23 and 29 of NDPS Act. 3. On evidence the learned Sessions Judge found A-3 to A-5 guilty of the offences punishable under Sections 22 and 23 read with Section 28 of NDPS Act and they were convicted and sentenced to suffer R.I. for 15 (fifteen) years under each count and also to pay a fine of Rs. one lakh each and in default to suffer R.I. for one year under each count. A-1 was found further guilty of an offence punishable under Section 27-A read with Section 2(viii)(a)(iii) of NDPS Act and under Section 22 read with Section 29 and Section 23 read with Section 29 of NDPS Act. He was further convicted and sentenced to suffer R.I. for 15 (fifteen) years under each count and also t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Methaqualone and hence all the tablets were seized after taking samples and they were sealed. 6. On the same day i.e., on 3-1-1995 the Assistant Collector of Central Excise (Preventive), Hyderabad searched the residential premises of Sri Shamraj Moorjani and Lalit Moorjani at Plot No. 102, Road No. 5, Jubilee Hills, Hyderabad in the presence of mediators and found a purse, some documents, one Maruti Car and Toyoto Corrella Car and they were also seized. 7. On the same day i.e., on 3-1-1995 the Officers also searched the premises at Plot No. 25, Old Bowenpally, Secunderabad in the presence of mediators. During the search, they found five number of wooden boxes containing grey coloured tablets with mark 'M' on one side and Swastik mark on the other side. On testing it was found that they were Methaqualone tablets. All the tablets in the boxes were seized after taking samples. 8. On the same day, the Officers of Directorate of Revenue Intelligence also searched the residential premises bearing No. 9-4-84/106, Vinayakar Nilayam, Kakatiya Nagar Colony, Hyderabad. During search, they seized Indian and Foreign currency and 15 grams of grey colour powder. When tested it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ten lakhs from A-7 to be paid to A-2 for exporting the said Methaqualone which were packed inside the coir carpet rolls and they were waiting to be transported from Cochin along with A-2. On 3-1-1995 they were making arrangements for their export to Nairobi and thereby committed an offence under Section 8(c) punishable under Sections 22, 23, 25 and 29 of NDPS Act. 12. In pursuance of the said conspiracy, A-2 received lorry receipt from M/s. Ghatge Patil Transports on which 36 packets containing Methaqualone tablets which was booked and arranged their receipt by A-3 and A-5 at Hyderabad and organised concealment of the tablets in the coir carpet rolls with the association of A-3 and A-4 and arranged its transport to Cochin with the association of A-5 and they were waiting for the receipt of the goods to export them to Nairobi and thereby committed an offence under Section 8(c) punishable under Sections 22, 23, 25 and 29 of NDPS Act. 13. It is further stated by the prosecution that in pursuance of the said conspiracy, A-3 associated himself with A-2 and arranged secret accommodation facilities with the association of A-4 for concealment of Methaqualone and made arrangements fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned as P.W.5. Mr. Ramachandra Reddy had assisted P.W.1 at the time of search of the premises by P.W.1. P.Ws.1 to 5 deposed before the trial Court that when the premises at B.N. Reddy Colony were knocked by them and after entering into the room, they disclosed their identity to the inmates and they further disclosed them about the purpose of their visit to the said premises and search was carried out. A-4 and A-5 were present in the premises at the time of search. At that juncture they found 36 coir carpet rolls sealed under gunny bags. On suspicion P.W.1 cut and opened one of the carpet rolls and they found that the carpet rolls were cut at seven places and cavities were created so as to conceal the Methaqualone tablets. During search they also discovered certain documents, sealing machine, weighing machine and tapes bundle and they were seized the aforesaid items under a panchanama Ex. P-10. They were produced into the Court and they were marked as M.Os. 1 to 3. 19. Sri Lakshmi Ram, the then Assistant Collector, Customs, Hyderabad, was examined as P.W. 8. He stated in his evidence that he was called by P.W.1 at his Office and informed him about the activities with regard to Nar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as hostile. Sri N. Ram Reddy, Superintendent, Central Excise, was examined as P.W.14. Mr. S.B. Sharma, who acted as a mediator, was examined as P.W.15. The evidence of P.W. 14 discloses that he was directed by P.W.1 to search the premises in Plot No. 25, Old Bowenpally, Secunderabad. He was also provided assistance to visit the premises. The mediator was examined as P.W.15. During their visit, they found the premises was locked. One watchman Sudershan was present. Enquiry was made with him and they were informed by the Watchman that he was not in possession of the keys of the premises but they were in possession of Shamraj Moorjani, who was the owner of the premises. He deputed one person to secure the presence of Shamraj Moorjani. When he came at the spot, he opened the door, which was in his possession. In the middle room they found five wooden boxes, wrapped with gunnies. When Sudershan was directed to open the boxes, they found some brown colour tablets having marked as M . All the boxes were seized and before seizing, sample was drawn. The total weight of 5 boxes was 186 Kgs. and 750 grams. They kept the sample tablets in polythene packet and the packet was put in a brow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, which is psychotropic substance within the provision of Section 2 (xxiii) of NDPS Act, 1985. The said section reads as under : Psychotropic substance means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule. 25. The second attack was on the procedure adopted for non-compliance of mandatory provisions of Section 42(2) of NDPS Act. It was submitted by the defence counsel that the provisions contained in Section 42(2) of NDPS Act was not properly complied with though it is a mandatory. The third ground raised by him was that the safe custody of the samples seized was not established by the prosecution. The question whether what was sent to CFSL for testing purposes becomes doubtful. The 4th ground raised by him was that there were lapses of weight of contraband samples given in Ex. P-53 assumes importance. The 5th ground raised by him was that P.W.19 did not give any data regarding test carried out by him. The 6th ground raised by him was that the prosecution has rendered inadmissible evidence in support of the case against A-1. The pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the cross questions, he has given the chemical composition of Methaqualone as under : Methyl-3(2 methyl phenyl)-4(3H) Quinalinozil 30. By looking to the evidence of the aforesaid witness that the chemical composition given by the said witness does not tally with the chemical composition given in the Schedule. The word tolyl is totally absent in the formula given by P.W.19. 31. While giving the explanation to the above discrepancy, the learned Special Public Prosecutor has produced a Xerox copy of the Merck Index and Encyclopedia of Chemicals, Drugs and Biologicals, 12th Edition. My attention was drawn to page 6028 which has given the chemical composition of Methaqualone as under : 2-methyl-3-o-tolyl-4(3H)-quinazolinone 32. The Merck Index, which was shown to this Court, also does not tally with the chemical formula, which is given by the witness in the evidence. Therefore, this Court is not able to hold that whatever the substance was analysed by the Scientific Officer is a Methaqualone. Therefore, on this ground alone the prosecution must fail. 33. Moreover, the established principle of law is that at the appellate stage by producing some documents her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of the officer, who claims to have exercised it on the strength of such unrecorded information, would become suspect, though the trial may not vitiate on that score alone. Nonetheless the resultant position would be one of causing prejudice to the accused. 37. While rebutting the aforesaid arguments, the learned Special Public Prosecutor submitted that the Officer of the Revenue Intelligence i.e., P.W.1 did not receive the information regarding the illegal activities carried out by the accused, which amounts to an offence under NDPS Act. But the said information was collected by him through his intelligence and therefore there was no necessity for P.W.1 to give information in writing to his superiors. Moreover, it was submitted by the learned Special Public Prosecutor that though the information was not given by P.W.1 in writing but his superior was informed regarding the raids carried out by P.W.1 and therefore his superior visited Hyderabad in connection with the raid conducted by P.W.1 and others at various places. 38. This Court is not satisfied with the submission made by the Special Public Prosecutor. When there is a mandatory provision of informing the superiors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor because of the fact that it appears that it was demonstrated in the Trial Court that the samples could be added or removed without damaging the covers and seals on M.Os. 7 and 8 envelopes. 41. I am very much doubtful whether such demonstration can be done. But any way there is a positive evidence on record that while consigning the samples M.Os. 7 and 8, care was not taken to send the samples in proper sealed covers and therefore this fact itself is likely to prejudice the defence of the accused. It was also pointed out from the evidence of P.W.19 that he had not given the details or data regarding the test carried out by him. This Court finds lapses on the part of P.W.19 not to mention the test carried out by him while analysing the samples. 42. The next point, which was submitted at the Bar by the defence counsel was that the statement of the accused recorded by the prosecution, especially that of A-1 under Ex. P-30, cannot be treated to have any evidentiary value because of the fact A-1 was made to give the statement by force and the same was admitted by P.W.1 in his cross-examination. My attention was drawn to the evidence of P.W.1, who has deposed as under : In p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Police Station for safe custody immediately after the seizure. Therefore, the sending of seized articles to the Chemical Examiner has become doubtful. 47. The last contention raised by the learned counsel for the defence was that whether the statement of the accused given to the Assistant Director of Revenue Intelligence recorded under Section 67 of NDPS Act can be held as admissible, as a part of evidence. Section 67 of NDPS Act reads as under : Any Officer referred to in Section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provision of this Act : (a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder; (b) require any person to produce or deliver any document or thing useful or relevant to the enquiry; (c) examine any person acquainted with the facts and circumstances of the case. 48. With this provision of law, it was contended by the learned defence counsel that Section 67 of NDPS Act is only a part ..... X X X X Extracts X X X X X X X X Extracts X X X X
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