TMI Blog2017 (4) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... also stated that it was not in his custody. Further, that there were other officers present in the office at that point of time (PW-2, 4 and 16). The emphasis on the circumstance that normally, the office of the NCB is closed on Saturdays and Sundays and the unusual presence of the officers on that Saturday not being explained or disclosed is indeed curious. Thus the contention as to the document at Exhibit P-1 being a false and concocted document cannot be ruled out. More importantly, the original information said to have been received in writing by PW-1 is not brought on record. The explanation offered that it would have placed the informant in a vulnerable position, is not acceptable. There was no impediment in taking the court into confidence and requesting that the identity of the informant be screened. The non-production of the said crucial document would add to the suspicion created about the receipt of any information as stated. There is no way to ascertain whether Exhibit P-1 is a true reproduction of the original information, especially when PW-1 has stated that Exhibit P-1 is a translated version of the original. The employment of expressions such as "narcotic drug" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to await the arrival of an Ambassador car which was to carry the drug to the spot from Lokapur. It was alleged that the said lorry did arrive as scheduled and the occupants were said to be waiting for the car to come to the designated point. It transpires that the car bearing no. KA- 23-M-3773 did arrive at about 4:30 PM. Accused no. 8 was said to be at the wheel and accused no.1 and 2 were said to be the other occupants of the car. The Narcotics Squad, headed by one K.Raghavan, examined at the trial as PW-13, who had been tipped off about the contraband being transported, were said to be keeping vigil at a distance. It is stated that the moment the car arrived, the squad is said to have swept in and intercepted both the lorry and the car simultaneously. And the inmates were caught red handed and a quantity of 29.355 kilogrammes of heroin was said to have been seized. The necessary procedures of drawing up a panchanamah, drawing of samples for the purpose of forensic examination and seizure of documents pertaining to the two vehicles etc., was said to have been duly complied with. On 14.12.1999, it is claimed that on interrogation of Accused nos. 1, 2, 4 to 8, their voluntary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and accused No.4 being the possessor of the said lorry and with the absconding accused No.2 owner / possessor of the ambassador car KA- 23-M-3773 knowingly allowed and used for the commission of the said offence and thereby committed the offence punishable under Section 8(c) read with Section 21, 28, 25 of N.D.P.S. Act, 1985? 4. Whether the prosecution further proved beyond reasonable doubt the accused No.1 after the purchase of 29.355 kgs of heroin from accused No.10 with the help of accused No.2 secreted it in the mother-in-law s house of absconding accused No.2 at Lokapur and in view of the criminal conspiracy that entered into between the accused as stated in point No.2, on 13/12/1999 the said contraband was transported in the ambassador car KA-23-M-3773 with the help of accused No.2 driven by accused No.8 to be transported in the lorry TN-69-2967 of accused No.4, 5 and 7 sent by Accused No.3 on the instructions of accused No.1 assisted by accused No.6 at the appointed spot 17 kms ahead of Tumkur on Tumkur-Sira NH Road and thereby further it is to be transported in the lorry TN-69-2967 to be brought by accused No.4, 5 and 7 and from that place to Tuticorin and from there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmation about the day to day work entrusted to the Officers and the work of surveillance would be secretly maintained in the office. In any event case files are maintained. Hence the trial court had committed an error in also holding that in the absence of maintenance of case diaries, the actual sequence of events would not be forthcoming and hence there would be scope for manipulation of the record, is a surmise that was not warranted and unfair to the prosecution as no such ill motive could be attributed to it. The trial court has erred in holding that the prosecution had failed to establish that there was a criminal conspiracy. It is contended that the prosecution has indeed demonstrated that Accused no. 1 to 11 had entered into a criminal conspiracy to procure, possess, sell, transport and to export illegally to Srilanka the quantity of 29.355 kgs.of heroin, which was recovered on the Bangalore - Pune National Highway from the vehicle belonging to Accused no.2. The trial has itself noticed that accused nos.1 and 2 had used their cell phones employing Sim cards procured in Karnataka. And that accused no.4 had also been in contact with them - thereby demonstrating that they we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l diary or even a personal diary, indicating the sequence of events and the movements of the respective officers in the course of their day to day duties - in relation to the present case and generally, as would be required of them. The absence of such a crucial document would also vitiate the proceedings, which is again a settled position of law. In so far as the allegation of criminal conspiracy is concerned, it is pointed out that there is no evidence to establish the conspiracy as alleged. In that, as per the complaint, the conspiracy was at Manover, Mumbai, Lakshapur, Chennai, Bangalore and Tuticorn during the period September 1999 to December 1999. It is contended that the case of the prosecution was to the effect that it was accused no.10 who had originated the supply of the contraband by sending the same to Lakshapur, to the house of the mother-in-law of accused no.2. In the absence of accused no.10 having been interrogated or any statement being recorded, the accusation, it is pointed out, is a bald allegation which was never proved by producing any evidence whatsoever. Further, accused no.3 was a resident of Tuticorn. Accused no.9 was a resident of Kanyakumari. Accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 12.12.1999 and had shifted to Hotel Swagath that night or that accused nos.5 and 7 had stayed at Hotel Srilekha at Hosur, when the lorry in which they were travelling is said to have broken down, and the accused who is said to have stayed at Hotel Samrat, Chitradurga, is on the basis of a photocopy of the Check -in Register of the respective hotels. Secondly, the admission by PW-17 that he was not present when accused no. 1 is said to have checked -in and further the identification of the accused by reference to a photograph was not satisfactory evidence of the allegations as held by the trial court. It is contended that in so far as the confessional statements said to have been made by the accused, is concerned, the accused have withdrawn the statements at the earliest opportunity when they were produced before the Special Court and had complained of ill-treatment and having been compelled to write statements as dictated by the officers. It is in this background that the trial court had concluded that the accused had been kept in illegal confinement by the concerned officers in the Central Excise office at Tumkur, before being produced before the court. It is incidentally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e position, is not acceptable. There was no impediment in taking the court into confidence and requesting that the identity of the informant be screened. The non-production of the said crucial document would add to the suspicion created about the receipt of any information as stated. There is no way to ascertain whether Exhibit P-1 is a true reproduction of the original information, especially when PW-1 has stated that Exhibit P-1 is a translated version of the original. The employment of expressions such as narcotic drug , mount surveillance and intercept heroin a narcotic drug , therein is especially suspicious. This is a serious lacuna on which ground alone the prosecution has failed. The trial court has rightly held that there is a patent violation of Section 42 of the NDPS Act. The case of the prosecution being distorted is also evident from the fact that it is demonstrated that the lorry in which accused nos.4, 5 6 were said to have come from Tuticorn to Tumkur had unexpectedly broken down at Hosur, outside Bangalore and it is seen that Accused no.4 is said to have telephoned accused no.1 at Bangalore, on 11.12.1999, that the lorry can proceed further only on 13.12.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admitted by PW-20 that no investigation was made into the whereabouts of Athabai. Nor is there any claim of having investigated Munna. Further, in so far as the so called confessional statements are concerned, each of the accused are said to have made certain statements - which are characterised as voluntary statements. However, all the accused have, at the earliest opportunity, when produced before the Special court for remand, complained about ill-treatment and as to how they were made to write statements as dictated by the officers of the NCB. This retraction has led the trial court to rightly conclude that the accused had been kept under illegal confinement and that the statements attributed to them could not be accepted. It is also on record that the accused were given an option to be searched before a Gazetted officer, but he was none other than PW-20 himself. This would render any consent obtained as being invalid. In a similar situation the Apex court in the case of Myla Venkateshwarlu v. State of Andhra Pradesh, (2012) 5 SCC 226, has held so. It is also a curiosity that though Accused no.10 a major participant in the crime according to the prosecution, though was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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