TMI Blog2017 (12) TMI 1447X X X X Extracts X X X X X X X X Extracts X X X X ..... t was only on their showing, the carton [M.O.13] was opened and searched and heroin was recovered from amongst churidar materials. This Court is unable to countenance this submission, because Exs.P.4 to 10 and M.Os.1 to 7 are not illicit articles per se under the NDPS Act. The possession of these exhibits and material objects, viz., visiting card, delivery receipt, mobile phones, Indian currency, US dollars and Sri Lankan currency will not attract punishment under the NDPS Act, because they do not come within the definition of a Narcotic drug or a psychotropic substance. These documents and material objects will assume significance only as corroborative pieces of evidence and mere possession of that will not entail conviction under the NDPS Act. When a case under Section 420 IPC/135 of the Customs Act is committed to the Special Court, the question is, what procedure the Special Court should follow, whether the procedure under Chapter XIX or the procedure under Chapter XVIII of the Code? This has been answered by Section 44(1)(d) of the PMLA. Section 44(1)(d) states that the trial of the scheduled offence and the trial of the money-laundering case shall be conducted in accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Senior Intelligence Officer, DRI, Chennai to arrange a team and proceed immediately. R.Padmanabhan, Senior Intelligence Officer, DRI, along with a team of Officers, viz., P.V.Jayaraman [P.W.1], Intelligence Officer, DRI, Chenchuraman [P.W.3], Intelligence Officer, DRI, Shyamalnath [P.W.8], Intelligence Officer, DRI, Vijayakumar [P.W.9], Intelligence Officer, DRI and others proceeded to Rajeshwar Textiles in Thambu Chetty Street. They called two persons, by name M.Sakthivel and K.Kumar, to be witnesses for the search. When the Officers went to Rajeshwar Textiles, Madhan [A1] and Chaval [A2] were there. They introduced themselves and when they questioned the duo about the information they have received, the duo came forward and handed over a parcel wrapped in white colour LDPE sack strapped with plastic straps, which was found with the marking, From: King Collection to RAJESHWAR TEXTILES, No.194, Thambu Chetty Street, Mannady, Chennai in black marker pen. [b] On opening the parcel, the Officers found 23 packets of unstitched churidar materials in a carton. On further examination of the churidar materials, the Officers found 46 packets of white colour substance concealed amongs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIES RECOVERED AND SEIZED FROM SHRI CHAVAL @ RAHUL Sl.No. Description of documents Exhibits/M.Os. 1 Delivery Receipt/Cash Receipt No.305200 dated 8.7.2012 of M/s Anmol Transports, Regd. Office No.9, Hirabhal Market, Outside Raipur Gate, Kankaria Road, Ahmedabad 22 (having office at Chennai at Old No.3, New No.5, Varadha Mutiyappan Street, Chennai 600 001) consigned to M/s.Rajeshwar Textiles Ex.P.7 2 L.R.No.446660 dated 3.7.2012 of M/s Anmol Transports, Ahmedabad Consignor : King Collections, Ahmedabad Consignee: Rajeshwar Textiles one parcel declared value ₹ 27,720/- (Invoice No.92) Ex.P.8 3 Bill of M/s. King Collection, 329/4, Adovala Ka Dehia, Nr. Gheekanta Police Chowkey, Gheekanta, Ahmedabad 380 001 Book No.92 Bill No.92 dated 3.7.2012 Transport : Anmol Transport Ex.P.9 4 Visiting card of M/s. Anmol Transports Ex.P.10 5 Indian Currency of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt [Ex.P.65] of Madhan [A1] in Tamil was obtained, wherein, he has stated that he is from Sri Lanka and that his Passport Number is N0990980; that from 2003-2011, he was doing ready-made garment business in Sri Lanka; that through one Nasli, a Sri Lankan Muslim, he got introduced to one Babulal, whom he had met in Bombay in the month of May; that he had gone to Ahmedabad, where he was introduced by Babulal to his brother Chaval [A2]; that he engaged himself with Babulal and Chaval [A2] in trafficking heroin; that they had earlier supplied 1,700 gms. of heroin by concealing it in ready-made garments, which was sent in the name of 'Kushboo Fabrics'' by air courier to Sri Lanka and the consideration of ₹ 10 lakhs was paid to the brothers by hawala; that again, Babulal asked him to come and collect 3.735 kgs, of heroin from his brother Chaval [A2]; that he came to Chennai on 06.07.2012 by Jet Airways 0251 and booked a room at NST Palace in Thambu Chetty Street; that he contacted Chaval [A2] to find out if the parcel had reached; that he handed over ₹ 1,18,000/- [M.O.7] on 07.07.2012 to Chaval [A2]; that on 08.07.2012, on coming to know that the parcel had reache ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , at 10.50 a.m. on 09.07.2012. The learned Remanding Magistrate made the following endorsement in the Remand Application Ex.P.14: Accused produced at 10.50 am. No complainant. Remanded to custody till 23.07.2012. Accused to be produced before Special Court on 23.07.2012 . [i] The seized properties were received by the Remanding Magistrate and were returned to the DRI with the endorsement 10 items produced and returned to complainant for production of the property before Special Court. After the transmission of the records from the Court of the Remanding Magistrate to the Special Court, P.V.Jayaraman [P.W.1] has submitted the properties to the Special Court for NDPS Act Cases on 16.07.2012 with a requisition to send sample P1S1 to the Central Revenues Control Laboratory, Chennai, for chemical analysis. Accordingly, the learned Special Judge for NDPS Act Cases sent the sample P1S1 with the seal of the DRI and the seal of the Special Court to the Central Revenues Control Laboratory, vide Ex.P.17. The sample was received on the same day by the laboratory and it was tested by Gandhimathy, Assistant Chemical Examiner [P.W.4], who, in her evidence before the Court and in the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Senior Intelligence Officer, DRI, who, in his evidence has stated that he obtained search warrant to search the premises of King Collection at 329/4, Adovaia Ka Dehla, near Gheekanta Police Chowky, Ahmedabad, but he was not able to execute the search warrant, as the premises was not found. He enquired with the Ahmedabad Branch of Anmol Transport and recorded the statement of Upendra Singh Sisodiya, loading incharge and the same was marked as Ex.P.50. He obtained two lorry receipts dated 15.06.2012 [Ex.P.52] and 03.07.2012 [Ex.P.53]. His attempts to locate King Collection proved futile. [l] On the request of DRI, Chennai, Bhawar Singh, Inspector of Customs and Central Excise, Jodhpur, searched the residence of Chaval [A2] in Jodhpur in the presence of his father and no incriminating materials were seized. The search mahazar was marked as Ex.P.58. After collating all the records and documents, P.V.Jayaraman [P.W.1] filed the complaint in C.C.No.4 of 2013 before the Special Court for NDPS Act Cases, Chennai, against Madhan [A1], Chaval [A2] and Babulal [A3] for the offences under Sections 21 (c), 27-A, 28 and 29 of the NDPS Act read with Section 8(c) and Section 135(A) of the Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e prosecution. Public Prosecutor argued that the above said Padmanaban is no more, hence he has not been listed as a witness, hence the question of examination of R.Padmanaban will not arise. Except this stray statement in the judgment of the trial Court, the prosecution did not place any tangible material before the trial Court in support of this fact. Therefore, this Court, in exercise of the powers under Section 391 Cr.P.C., passed an order dated 27.11.2017 for recalling P.V.Jayaraman [P.W.1]. 9. On 29.11.2017, P.V.Jayaraman [C.W.1], was examined by this Court in the presence of both the accused and their counsel. In his evidence before the Court, P.V.Jayaraman [C.W.1] has stated that R.Padmanabhan, Senior Intelligence Officer of DRI was in the cadre of Superintendent and was a Group 'B Gazetted Officer and that he had died on 26.12.2012. His Death Certificate was marked as Ex.C.1 and his signature in the Mahazar [Ex.P.2] was identified. Learned Senior Counsel appearing for the accused fairly conceded the position and did not cross-examine P.V.Jayaraman [C.W.1]. Since both the accused were present in the Court, this Court questioned them under Section 313 Cr.P.C. ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DRI Officers without corroboration by independent sources should not be accepted. 7 There has been infraction of Section 50 of the NDPS Act, inasmuch as the accused were not properly apprised of their right to be searched in the presence of a Gazetted Officer or a Magistrate and that search of the person of the accused in the presence of a Gazetted Officer of DRI will vitiate the search. 8 Strong reliance was placed on the following judgments of the Supreme in Dilip and another vs. State of Madhya Pradesh [(2007) 1 SCC 450], Union of India vs. Shah Alam and another [(2009) 16 SCC 644]; and State of Rajasthan vs. Parmanand and another [(2014) 5 SCC 345]. 9 In Ex.P.41, the summons that was issued to K.Kumar, the date has been shown as 15.12.2012, whereas, Kumar was asked to appear before the DRI on 29.08.2012 and therefore, the statement of Kumar [Ex.P.42] stands vitiated. 10 The accused retracted his confession statement and alleged that it was obtained by torture by sending a letter from the prison to the Special Court on 23.07.2012. (B) SUBMISSIONS OF MR.B.KUMAR, LEARNED SENIOR COUNSEL FOR CHAVAL [A2]: 1 The information report [Ex.P.1] is very exhaus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ils, that cannot be a ground to suspect the same. 2 The provisions of Section 42 of the NDPS Act will not apply, since the search team was headed by R.Padmanabhan, Senior Intelligence Officer of the rank of the Superintendent and a Gazetted Officer. 3 Reliance was placed on Mr.Prabhulal vs. Assistant Director, DRI [(2003) 8 SCC 449] and G.Srinivas Goud vs. State of Andhra Pradesh [(2005) 8 SCC 183] to show that a Gazetted Officer acting under Section 41 of the NDPS Act is not required to follow Section 42 of the NDPS Act. 4 The provisions of Section 50 of the NDPS Act will not apply, because the recovery of contraband was not from the person of the accused, but was from the textile consignment. 5 Reliance was placed on the Constitution Bench judgment of the Supreme Court in Vijaysinh Chandubha Jadeja vs. State of Gujarat [(2011) 1 SCC 609]. 6 That Sakthivel [D.W.2], who was a mahazar witness, has been won over by the accused and that is why he has been evading the receipt of summons from the Special Court and ultimately, appeared as a defence witness, as he was in the clutches of the accused. 7 One of the principal accused, viz., Babulal, the elder bro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chaval [A2], Proprietor of Rajeshwar Textiles and his brother Babulal [A3-absconding from Ahmedabad] have planned to transport Narcotic Drugs and that one Madhan [A1] is going to receive it. This information has been recorded under Section 42 of the NDPS Act, vide Ex.P.1 and has been submitted to the Senior Officers of DRI. It is true that the Information Report [Ex.P.1] contains details and description of the accused, their addresses, their nationalities, etc. 14. Mr.B.Kumar, learned Senior Counsel contended that since the Information Report [Ex.P.1] contains wealth of details, it deserves to be rejected as contrived. He further contended that, in the cross-examination of P.V.Jayaraman [P.W.1], he has stated that he has received the information over phone and while he was receiving it, he typed it out in his computer. It would have been impossible for P.V.Jayaraman [P.W.1], to have received the information over phone and simultaneously type it in his computer. On a perusal of the Information Report [Ex.P.1], it is evident that it is a computer print out. It is common knowledge that every Intelligence Agency in this country has its own informants and moles to gather intelligence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s found to be of 50 gms. The powder was tested and it answered positive for heroin. [b] P.V.Jayaraman [P.W.1] has further stated that an option under Section 50 of the NDPS Act was given to both the accused and they were explained of their right to be searched before a Gazetted Officer or a Magistrate. Shyamalnath [P.W.8] explained this to Chaval [A2] in Hindi. P.V.Jayaraman [P.W.1] has stated that he explained this right to Madhan [A1] in Tamil; that in the presence of R.Padmanabhan, Senior Intelligence Officer, who is an Officer of a Gazetted rank, the personal search was conducted and the items that are listed above were recovered. [c] He has further deposed that 3 samples of 5 gms. each were drawn and they were given marking as P1S1, P1S2 and P1S3 and in the Court, they were marked as M.Os.8 to 10. The balance contraband was also sealed with DRI seal and was marked in the Court as M.O.11. The seized covers used for packing the contraband was marked as M.O.12 and the cartons containing the churidar materials was marked as M.Os.13 and 14. This Court called for M.Os.12,13 and 14 for inspection and found that M.O.12 is a packing material, viz., LDPE sack and M.Os.13 and 14 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 50 might not have been required to be complied with so far as the search of scooter is concerned, but keeping in view the fact that the person of [the accused] was also searched, it was obligatory on the part of [the officers] to comply with the said provisions. (2) In Union of India v. Shah Alam and another [(2009) 16 SCC 644], the Supreme Court followed the law in Dilip (supra) and refused to interfere with the order of acquittal on facts and held as under: We have carefully gone through the records of this case. From the evidence of the complainant, PW 1 and the seizure memo (Fard Baramdegi), Ext. Ka-2 it is evident that the two respondents were subjected to a body search in course of which packets of heroin were found in the shoulder bags carried by them and were recovered from there. The facts of the case in hand are very close to another decision of this Court in Dilip v. State of M.P. [(2007) 1 SCC 450. (3) In State of Rajasthan v. Parmanand [(2014) 5 SCC 345], the Supreme Court relied upon Dilip (supra) and Shah Alam (supra) and has held as under: 15. Thus, if merely a bag carried by a person is searched without there being any search of his pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Baldev Singh (supra) and has held that it is an idle exercise in this case to consider whether there was no compliance of the conditions stipulated in Section 50 of the Act. 20 (5) In Birakishore Kar v. State of Orissa [JT 1999 (10) SC 350, the accused was found lying on a plastic bag in a train compartment and on checking the plastic bag, it was found to contain 10 kgs of poppy straw. The Supreme Court placed reliance on Baldev Singh (supra) and held that Section 50 of the NDPS Act will not apply. 20 (6) In Gurbax Singh vs. State of Haryana [(2001) 1 Supreme 625], the accused was carrying a gunny bag which was found to contain 2 kgs of poppy straw. The Supreme Court relied upon Baldev Singh (supra) and has held that Section 50 of the NDPS Act will not apply. 20 (7) In Kanhaiya Lal vs. State of Madhya Pradesh, [2000 (10) SCC 380], the accused was found carrying 1 kg of opium in a bag and the Supreme Court held that Section 50 of the NDPS Act will not apply. 20 (8) In Madan Lal and another vs. State of Himachal Pradesh [(2003) 6 Supreme 382], the accused was travelling in a car, in which, a black colour bag was found. On checking the bag, it was found to contain 820 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ana [(2010) 3 SCC 746], the accused was carrying a bag, from which, 500 gms of charas was recovered and the Supreme Court in paragraph 13 has held as under: 15. .......It requires to be noticed that the question of compliance or non-compliance with Section 50 of the NDPS Act is relevant only where search of a person is involved and the said section is not applicable nor attracted where no search of a person is involved. Search and recovery from a bag, briefcase, container, etc. does not come within the ambit of Section 50 of the NDPS Act, because firstly, Section 50 expressly speaks of search of person only. Secondly, the section speaks of taking of the person to be searched by the gazetted officer or a Magistrate for the purpose of search. Thirdly, this issue in our considered opinion is no more res integra in view of the observations made by this Court in Madan Lal v. State of H.P. [(2003) 7 SCC 465 : 2003 SCC (Cri) 1664 . 20 (14) Very recently, in Makhan Singh vs. State of Haryana, [(2015) 12 SCC 247], the accused was sitting in a fitter-rehra, from where 120 kgs of poppy husk was seized. The Supreme Court relied upon Baldev Singh (supra), Pawan Kumar (supra) and Ajmer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 3 Judge Bench of the Supreme Court in Pawan Kumar (supra). However, in Vijaysinh (supra), the Constitution Bench clearly held as follows: 29. ....... Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. (emphasis supplied) 23. Thus, it is clear that from the above passage that there can be no pale of doubt that if an illicit article has been recovered from the search of the person of the accused in violation of Section 50 of the NDPS Act, the recovery will become suspect. In Banobi (supra), charas was recovered from the house and heroin was recovered from her person and the Supreme Court acquitted the accused for possessing heroin, since the search was conducted in violation of Section 50 of the NDPS Act, but convicted the accused for the recovery of charas from her house. Even after such an authoritative pronouncement of the Supreme Court, it is too late in the day to canvass that Section 50 of the NDPS Act would apply even in a case where the recovery has not been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other part of such document which purports to be in the handwriting of any particular person or which the court may reasonably assume to have been signed by, or to be in the handwriting of, any particular person, is in that persons handwriting; and in the case of a document executed or attested, that it was executed or attested by the person by whom it purports to have been so executed or attested; (b) admit the document in evidence, notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence; (c) in a case falling under clause (i), also presume, unless the contrary is proved, the truth of the contents of such document. 27. The LDPE sack [M.O.12] was examined by this Court and it was found to contain the markings From: King Collection to RAJESHWAR TEXTILES, No.194, Thambu Chetty Street, Mannady, Chennai . From Chaval [A2], Exs.P.7, 8 and 9 were recovered. Ex.P.7 is the delivery receipt dated 03.07.2012 of Anmol Transports; Ex.P.8 is the lorry receipt, LR No.446600 dated 03.07.2012 of Anmol Transports, Ahmedabad, wherein consignor is shown as King Collection, consignee is shown as Rajeshwar Textiles and Ex.P.9 is the bill of Ki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the summons has been marked as Ex.P.40. Therefore, the DRI Officers were not able to record the statement of M.Sakthivel. However, they have recorded the statement of the other Mahazar witness K.Kumar on 29.08.2012, which has been marked as Ex.P.42. The fact remains that the prosecution was not able to examine both the mahazar witnesses, viz., Sakthivel and Kumar during trial. The occurrence in this case has taken place in the year 2012, as could be seen from the records. The trial commenced with the examination of P.V.Jayaraman [P.W.1] on 20.02.2014. The cross-examination of P.V.Jayaraman [P.W.1] was completed only on 14.07.2015. Thereafter, the prosecution collected witness summons for Sakthivel and K.Kumar and they were not able to serve it on them as could be seen from the memo dated 13.05.2015 that has been filed in the trial Court and which is available in the Court records. The memo dated 13.05.2015 reads as follows: 2. It is respectfully submitted that this Hon'ble Court had issued summons to serve to Shri M.Sakthivel s/o S.Madhachary (Late) as Witness 13 and to Shri K.Kumar S/o K.Kothandaraman as Witness 14 to appear in this Hon'ble Court on 13/05/2015. Both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The examination-in-chief ended with this. 31. Even if the Public Prosecutor had stated no cross, the evidence of this witness ex facie lacks credibility and militates against the dictates of common sense. In fact, Section 114 of the Evidence Act states that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. According to this witness, he was abducted by the Officers along with Madhan [A1] and lodged in the DRI Office. If this is accepted, then one can infer that the DRI Officials knew that he [Sakthivel] was a close friend of Madhan [A1]. If that had been so, would they have joined him as a witness in the panchanama proceedings? Even an investigator with a modicum of common sense will not be gullible to have a close friend of the accused as panchanama witness. A panchanama witness should be a person who should not be known to the raiding party and the accused. That apart, according to this witness, he was also detained illegally on 08.07.2012 and 09.07.2012 . He has not stated as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fence witness should be given equal weightage as that of the prosecution witnesses, yet, where the evidence is so unbelievable, no credence need be attached to such testimonies. 34. It is the case of the prosecution witnesses that the two independent witnesses, Sakthivel and Kumar, were called by R.Padmanabhan, Senior Intelligence Officer, DRI, to stand as panchanama witnesses. The untimely death of R.Padmanabhan after the seizure and his non-availability was taken advantage of by the accused, to project a case as if Madhan [A1] and Sakthivel [D.W.2] were abducted from NST lodge on 08.07.2012 to the DRI Office. 35. As regards the submission of Mr.A.Raghunathan stated in para 10(A)(9) above relating to two dates in the summons [Ex.P.41], viz., 15.12.2012 and 29.08.2012, this Court is of the view that nothing turns out in this because, Kumar has received the summons on 29.08.2012 and has given his statement [Ex.P.42] on the same day. Therefore, reference to the dated 15.12.2012 [Ex.D.1] is obviously a typographical error. Even if this Court were to give the benefit of this discrepancy to the accused, no consequences would follow because, Kumar was not examined in the trial Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence relied upon the judgment of the Supreme Court in Tofan Singh vs. State of Tamil Nadu [(2013) 16 SCC 31], wherein, the Supreme Court has doubted the correctness of the admissibility of a confession recorded by a Revenue Officer under Section 67 of the NDPS Act and has referred the matter for a decision by a larger Bench. Relying upon this judgment, the learned counsel submitted that this Court should not place reliance upon the confession statement of the accused. 42. In the opinion of this Court, the Supreme Court, in Tofan Singh (supra), has referred to a long line of judgments and has held that a statement made to a Revenue Officer, if it is confessional in nature, would be admissible in evidence. Therefore, until the decision of the larger Bench on this issue, this Court is bound by the judgments of the Supreme Court, wherein, the Supreme Court has held that such confessions are admissible in evidence. 43. Learned counsel for the defence contended that the confession would be hit by Section 24 of the Evidence Act, if it is shown that the same has been obtained under coercion. This Court has no iota of doubt on this legal proposition. The defence counsel relied upon th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r.K.S.Gowrishankar [D.W.1] has stated that the injuries are two days old. Therefore, two days old means, it must be on 07.07.2012 and are not fresh injuries. 45. In Prabhulal (supra), the Supreme Court has held as follows: 5. .......Further, it is also to be borne in mind that the appellants did not make any complaint before the Magistrate before whom they were produced complaining of any torture or harassment. It is only when their statements were recorded by the trial Judge under Section 313 of the Code of Criminal Procedure that a vague stand about the torture was taken. Under these circumstances, the confessional statements cannot be held to be involuntary. The statements were voluntarily made and can, thus, be made the basis of the appellants' conviction. 46. In A.K.Mehaboob vs. Intelligence Officer, Narcotics Control Bureau [(2001) 10 SCC 203], the Supreme Court has observed as under: It must be remembered that the appellant Naushad has no case that when he was produced before the Magistrate immediately after his arrest, that he made any grievance of any maltreatment administered to him by the members of the Narcotics Control Bureau. Therefore, thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g textiles from Rajeshwar Textiles. Chaval [A2] has stated in his retraction statement that he is into textiles business. The seizure has been from Rajeshwar Textiles Shop in Thambu Chetty street from textile materials. Therefore, Mr.B.Kumar's contention that the prosecution had failed to prove that Chaval [A2] was the Proprietor of Rajeshwar Textiles is unacceptable. Even if everything goes, the evidence of four witnesses to the effect that they went to Rajeshwar Textiles in Thambu Chetty Street on 08.07.2012 when Madhan [A1], a Sri Lankan national and Chaval [A2] were in the shop, is sufficient enough to establish the nexus between Chaval [A2] and Rajeshwar Textiles Shop. 50. In Hemraj vs. State of Ajmer [AIR 1954 SC 462], the Supreme Court has held that a confession can be corroborated with the materials already in the hands of the police. 51. In fine, this Court is of the view that the confession statement of Madhan [A1] and Chaval [A2] are voluntary and truthful and the same can be relied upon along with the seizure of the contraband. 52. In this case, the recovery of heroin has been made in the presence of Madhan [A1] and Chaval [A2]. It is not the case of the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rse burden must not only be strictly complied with, but also may be subject to proof of some basic facts. However, the Supreme Court has held that Sections 35 and 54 of the NDPS Act cannot be said to be unconstitutional. 54. In this case, the prosecution have, via the evidence of P.V.Jayaraman [P.W.1], Chenchuraman [P.W.3], Shyamalnath [P.W.8] and Vijayakumar [P.W.9], cogently established the seizure of the contraband kept concealed amongst churidar materials in Rajeshwar Textiles in the presence of Madhan [A1] and Chaval [A2] and in the cross-examination of the Officers, it has not been suggested that on account of previous motive or enmity, a false case has been foisted against the accused. 55. In Madan Lal (supra), the Supreme Court has held that once custody is proved, then, the accused should prove that they had no conscious possession. This principle has been reiterated in Megh Singh vs. State of Punjab [2003 AIR SCW 4536]. Therefore, even if the confession is kept at bay, there are overwhelming materials to show that Madhan [A1] and Chaval [A2] were in custody of the contraband and it is for them to disprove the prosecution case. 56. Learned Senior Counsel contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence must be drawn under Section 114 (g) of the Evidence Act against the prosecution for not examining the mahazar witnesses, Mahendar, people from Anmol Transport and witnesses relating to the Call Details Records. 63. This issue has been answered by the Supreme Court in Harpal Singh vs. Devinder Singh and another [(1997) 6 SCC 660]. An illustration under Section 114(g) of the Evidence Act is only a permissible inference and not a necessary inference. Unless there are other circumstances, it should not be a mechanical process to draw adverse inference merely on the strength of non-examination of a witness, even if it is a material witness. In this case, one of the mahazar witnesses, viz., Sakthivel [D.W.2] has been won over by the accused and he deposed in their favour as D.W.2. The whereabouts of the other witness Kumar could not be ascertained. Similarly, Mahendar hails from Jodhpur in Rajasthan and he had only brought the consignment from Anmol Transport to Rajeshwar Textiles. Therefore, in the facts and circumstances of the case, no adverse inference can be drawn as canvassed by the learned Senior Counsel. 64. Now, coming to the first argument of Mr.A.Raghunathan, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an ex post facto law and not the trial thereof. Such trial under a procedure different from what obtained at the time of the commission of the offence or by a court different from that which had competence at the time cannot ipso facto be held to be unconstitutional. A person accused of the commission of an offence has no fundamental right to trial by a particular court or by a particular procedure, except insofar as any constitutional objection by way of discrimination or the violation of any other fundamental right may be involved. (emphasis supplied) 66. Mr.A.Raghunathan, learned Senior Counsel, referred to Section 44(1)(d) of the PMLA and submitted that in the absence of such a provision in the NDPS Act, the trial should have been conducted in accordance with Chapter XIX-B of the Code. This Court does not want to repeat the reasons given in Prabhulal (supra) for negativing this contention. However, since the PMLA has come in 2002, it becomes necessary to advert to the submissions of Mr.A.Raghunathan in this regard. 67. To answer Mr.A.Raghunathan's submission, it may be necessary to briefly narrate the history of the NDPS Act. India being an opium producing c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppearance. On the appearance of the accused, the Magistrate was required to record the statement of the complainant and the witnesses on oath under Section 202(2) Cr.P.C. and commit the case to the Court of Sessions under Section 208 Cr.P.C. On the other hand, a Police Officer was required to file a police report before the jurisdictional Magistrate and the case was committed to the Court of Sessions under Section 209 Cr.P.C. straightaway. This procedure was given a go-by, by the Parliament via the NDPS Amendment Act, 1988 (2 of 1989) with effect from 29.05.1989 by the constitution of Special Courts to try the cases without recourse to committal proceedings. 69. Section 36-A(1)(d) of the NDPS Act reads as under: 36-A. Offences triable by Special Courts.- 1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) ..... (b) ..... (c) ..... (d) a Special Court may, upon a perusal of police report of the facts constituting an offence under this Act or upon a complaint made by an officer of the Central Government or a State Government authorized in the behalf, take cognizance of that offence without the accused being commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... search and seizure can be conducted only when there is reason to believe from personal knowledge or information given by any person and taken down in writing; that an option under Section 50 of the NDPS Act should be given for personal search; report under Section 57 of the NDPS Act should be sent and statement can be recorded under Section 67 of the NDPS ACT. All these records, along with the complaint in writing by the authorised Officer, would provide enough materials for the accused to prepare his defence. 75. Now, coming to the comparison of the provisions of Section 44(1)(d) of the PMLA with the provisions of Section 36-A(1)(d) and 36-C of the NDPS Act in support of the contention that a Special Court under the NDPS Act should adopt procedure for Magisterial trials, if the prosecution is by a non-Police agency, PMLA envisages two category of offences, viz., scheduled offences and the offence of money-laundering. The offence of money-laundering under Section 3 of the PMLA can be invoked only if the offender had acquired money by commission of a crime enumerated in the schedule to the Act. 76. Section 44(1)(c) and (d) was introduced in the PMLA only by Central Act 2 of 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en under the NDPS Act, because the offence under the NDPS Act is not dependent upon the commission of an offence under another enactment, whereas, the offence under Section 3 of the PMLA is dependent upon the commission of an offence mentioned in the schedule to the PMLA. Hence, the comparison is misconceived. 78. In the result, this Court does not find any infirmity in the conviction of the appellants by the Special Court warranting interference. As to the sentence, the trial Court has imposed the sentence of 14 years for each charge against the appellants. Interest of justice will be served if the sentence is reduced to 10 years Rigorous Imprisonment, that being the minimum for the convicted offences. 79. Accordingly, the sentence imposed in C.C.No.4 of 2013 by the II Additional Special Court for NDPS Cases, Chennai is reduced to 10 years Rigorous Imprisonment. 80. Madhan [A1], being a Sri Lankan National, will be entitled to his Sri Lankan Passport at the time of his release from the prison. At the time of release after undergoing the sentence, the Superintendent, Central Prison, Puzhal, Chennai, shall hand over custody of Madhan [A1], to the Special Camp for Sri Lankan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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