Senior Intelligence Officer Vs Mwinshehe Shabani Selemani

MWINSHEHE SHABANI SELEMANI S/O SALEMANI MWINSHEHE TANZANIA NATIONAL HOLDER OF PASSPORT NO.AB - 226171, NO. 215, MAFURIKU STREET, ILALA, BUNGUNIDAR-E-SALAM, TANZANIA.

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…RESPONDENT

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(RESPONDENT -SERVED AND UNREPRESENTED)

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THIS CRL.A. FILED U/S.378(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 26.08.2011 PASSED BY THE XXXIII ACC & SJ & SPL. JUDGE (NDPS), BANGALORE IN SPL.C.C.NO.1/2009-ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 8(c) R/W SEC. 29, 21(c), 23(c) AND 28 OF NDPS ACT.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL

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ORAL JUDGMENT

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This appeal is by the State aggrieved by the judgment and order dated 26.08.2011 passed in Spl.C.C.No.1/2009 on the file of XXXIII Additional City Civil and Sessions Judge & Spl. Judge (NDPS), Bengaluru, CCH-33, (hereinafter referred to as 'the Trial Court'), by which, the accused/respondent herein has been acquitted for the offences punishable under Section 8(c), read with Sections 29, 21(c), 23(c) and 28 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985.

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The case of the prosecution is that Additional Director, Directorate of Revenue Intelligence, New Delhi had received information stating that accused herein, who was bound to travel to Kuala Lumpur from Bengaluru by Malaysian Airlines, Flight No.MH-193 dated 02.07.2008 scheduled to leave Bengaluru International Airport at 00-50 hrs on 02.07.2008 was carrying narcotic drug (heroin) concealed in his accompanied baggage or in his person and requested to take necessary action in this matter. Thereafter, Additional Director, DRI, New Delhi had faxed the message to one R.Venkatraman,

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Additional Director General, DRI, Bangalore Zonal unit,

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Bangalore to take necessary action in the matter. Said R.Venkatraman entrusted the matter for investigation to complainant-CW1, Sri.M.Eshak. CW1 secured the presence of his colleagues and left to the International Airport, Bangalore and reached at 11.45 p.m. on 01.07.2008, introduced himself to the Airport authorities and requested the officials at the international Airport to witness the same and also become panchas for the same. Assistant Director, DRI, BZU, informed the complainant that required seal and drug testing kit had already been taken by Sri.D.Chandrasekhar, Intelligence Officer, who had already gone to the International Airport in respect of the other matter. He had requested the staff of checking counter to provide with list of passengers so scheduled to fly to Kuala Lumpur. According to the list, name of the accused was found at Sl.No.67 who had already checked in and was allotted seat number 24G. The complainant and his staff went inside the aircraft and found the accused in the said seat No.24G. On enquiry, he reveals his name which tallied with the information received. He was brought out of the aircraft and was taken to the departure hall. Accused was

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informed that information regarding he carrying narcotic drug/substance was received and was requested to clarify, to which he denied. On persistent enquiry, he revealed that he had concealed 65 capsules of heroin in his body and would eject if he was taken to a convenient place.

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Accused was informed that he had right to be searched in the presence of a Gazetted Officer or Magistrate, to which he preferred to be inspected in the presence of Gazetted Officer. PW3 custom officer was present and was called for inspection. In the presence of PW3, personal search was conducted and nothing was found. Accused was thereafter taken to Baptist Hospital by PW1 and his colleagues, wherein he was admitted. PW7-Dr.Amudhan, requested the accused to eject the capsule

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to which he refused. He refused medical intervention. Upon his request, he was given 1 litre of drinking water. On consuming the same, the accused ejected 65 capsules which were washed by the accused himself which contained heroin. All the 65 capsules weighed together about 856 grams. Out of this, 3 samples of 5 grams each was taken out for the purpose of chemical examination. The rest was covered in a cloth bag and

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sealed. Accused was produced before the Court. He was remanded.

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PW1 thereafter sent report to his official superior as required under Section 57 of N.D.P.S. Act. Accused was issued notice under Section 67 of N.D.P.S. Act. Accused had given voluntary statement admitting his guilt. Samples were sent to Chennai Chemical examiner for examination. On receipt of the chemical examination, complaint was lodged. Charges were framed. Accused denied and sought for trial. Accordingly, the matter was set down for trial. 10 witnesses have been examined on behalf of the prosecution as PW.1 to PW10. 37 documents have been marked at Ex.P1 to Ex.P37 and 8 material objects have been marked as MO.1 to MO.8. 4 documents have been marked on behalf of the accused as Ex.D1 to Ex.D4.

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Accused was examined and his statement was

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recorded under Section 313 of Cr.P.C which he denied. The trial Court framed the following points for consideration:

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"1. Whether the prosecution has proved beyond all reasonable doubt that:

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(a) In between 1/7/2008 and 2/7/2008 accused conspired with one Moosa in exporting heroin from New Delhi to Kulalampur and thereby committed the offence punishable U/Sec.8(c) read with Section 29 of N.D.P.S. Act?

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(b) That on the said date, time and place, accused was found in possession of 856 grams of heroin, a narcotic drug without permission ог pass and thereby committed the offence punishable U/Sec.8(c) read wit Section 21(c) of N.D.P.S. Act?

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(c) That on the said date, time and place, accused attempted to commit the offence under the N.D.P.S. Act and thereby committed the offence punishable U/Sec.8(c) read with Section 28 of N.D.P.S. Act?

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(d) That on the said date, time and place, accused attempted to export from India the narcotic drug without obtaining any pass or permit and thereby committed the offence punishable U/Sec. 8(c) read with Section 23(c) of N.D.P.S. Act?

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2. What order?"

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On appreciating evidence, trial Court answered

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point number 1(a) to 1(d) in the negative and consequently passed the impugned order, acquitting the accused of the offences alleged, against which, the present appeal is preferred.

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Learned counsel appearing for the appellant at the outset submits that the trial Court has grossly erred in misinterpreting the provisions of Sections 42 and 43 of the N.D.P.S. Act, despite there being Mahazar conducted while

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searching and seizing the contraband substance, as per Ex.P2. The trial Court has erred in opining that no such search was conducted. The trial Court has erred in wrongly reading the circular issued for the purpose of sending the substance for chemical examination in 72 hrs which was strictly complied with.

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That the accused, who was admitted to the Baptist Hospital, has ejected the contraband substance in the form of 65 capsules in the presence of Medical Officer, who has withstood test of cross-examination. Merely on general suggestions made to the witness regarding the digestive system, the trial Court ought not to have accepted the version of the defence of accused not carrying the substance, when in fact the substance was recovered from the person of the accused.

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The trial Court erred in not taking into consideration the voluntary statement made by the accused. The trial Court has wrongly applied the precedents into the facts of the instant case, warranting interference at the hands of this Court.

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10. Heard. Perused the records.

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Point that arise for consideration is:

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'' Whether the trial Court is justified in acquitting the accused-respondent for the offences punishable under Sections 8(c) R/w Sections 29, 21(c), 23 (c) and 28 of N.D.P.S Act, 1985? ''

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The trial Court has declined to accept the very initiation of the proceedings, on the premise of same not being in compliance with requirement of Section 41 of the NDPS Act. The trial Court has found that the information at Ex.P1 was addressed by one A.K.Kadri to R.Venkatraman, Additional Director General. However, the same was marked to one S.K.Vimalanathan, who in turn had issued instruction to one Rajan. The trial Court has found this to be not in consonance with the provisions of Section 42 of the N.D.P.S. Act, which reads as under:

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" 42. Power of entry, search, seizure and arrest without warrant or authorisation .—

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(1)Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including paramilitary forces or armed forces as is empowered in this behalf by

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general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,--

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(a)enter into and search any such building, conveyance or place;

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(b)in case of resistance, break open any door and remove any obstacle to such entry;

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(c)seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and

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(d)detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:Provided that in respect

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of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector:

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Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

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(2)Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior."

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The perusal of said provisions indicates that information received shall be reduced in writing by the officer and not by the person who had heard thereabout, as rightly taken note by the trial Court. If Sri.A.K.Kadri Additional Director, DRI New Delhi had received the information and passed on the same to Sri.R.Venkataraman, Additional Director General of DRI, it would be either of the two officers who would

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fall within the requirement of Section 42. In the instant case, as taken note of by the trial Court at paragraph 62 of the judgment, that though the information was received by S.K.Vimalanathan, he had directed the Assistant Director

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Sri.Ranjan to take necessary action and in turn said Sri.Ranjan Assistant Director had marked the same to PW1 to proceed further in the matter. This procedure adopted by the prosecution, as rightly found by the trial Court, runs contrary to the law laid down in the Apex Court in the case of Director of Revenue and Another vs Mohammed Nisar Holia reported in (2008) 1 SCC (Cri) 415 , which has been taken note by the trial Court at paragraph No.60 of the judgment.

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The exception sought to be pleaded by the prosecution relying upon Section 43 in the instant case has been negated, rightly so, as admittedly on the purported search conducted on the accused in the aircraft, nothing was found either in his possession or in person. He was thereafter taken

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to the search room even there nothing was found. It is only after being purported voluntarily statement of he concealing the same in his body, he was taken to the Baptist Hospital.

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The trial Court has found the process of accused ejecting the 65 capsules to be doubtful as PW6 himself has admitted that he not being 99% competent to depose with regard to human anatomy in this regard. The trial Court has

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also found that though the X-ray was taken prior to accused ejecting the capsules, no X-ray was taken thereafter to ensure whether any capsules were leftover or what was found in the earlier X-ray was indeed the capsule. The trial Court has also found that no separate mahazar was drawn, at the time of recovering the capsules after the purported ejection by the accused.

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Learned counsel for appellant at this juncture brings

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to notice of the Court Ex.P2 and submits that Ex.P2 is a document which records every minute details from the moment information as per Ex.P1 was received till the substance were recovered from the person of the accused. He submits though no separate mahazar is drawn but the witnesses who were taken into the aircraft and to the hospital are the same. Therefore, he submitted there is substantive compliance of drawing of the mahazar and the same ought not to have been found fault with by the trial Court.

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This Court is not persuaded by the said submission in

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as much drawing up of mahazar is a crucial stage of any investigation. Any substantive procedural lapse would go in

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favour of the accused. Admittedly, no separate mahazar has been drawn in the instant case while purportedly recovering 65 capsule which are allegedly ejected by the accused. No error can be found in findings arrived at by the trial Court, in finding the process to be doubtful, as this substantial procedural error will have to be read in favour of the accused.

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As regards, sending the substance for chemical examination, it is admitted that PW5 was entrusted with the capsules on 04.07.2008, the sample reached the laboratory on 09.07.2008, which is after a lapse of 4 to 5 days of purported seizure of the samples. The trial Court has referred to standing instructions No.13 prescribed by the Narcotics Control Bureau, New Delhi, providing that the samples must be dispatched to the laboratory within 72 hours of seizure to avoid any objections.

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At paragraph Nos.29 and 30, the trial Court has found that the samples which reached the laboratory after 72 hours, to be the circumstance going in favour of the accused. Though there is considerable force in the submission being made by the learned counsel for the appellant, that as per the mode and

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limit prescribed for dispatching, it only contemplate dispatching of the substance within 72 hours not about reaching the same, same in the over all circumstances of case is of no much significance.

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That the trial Court has also adverted to the deposition of PW7-Doctor, paragraph No.70 of the judgment and on analyzing the answers/deposition, more particularly, about his answer given at paragraph No.36 of the crossexamination of him not being qualified to answer 99% of the questions put to him in the course of cross-examination because of he being a General Surgery President, not medical Gastroenterologist, the trial Court has found his deposition to be not free from doubt.

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The Hon'ble Apex Court in the case of Chandrappa Vs. State of Karnataka reported in (2007)4 SCC 415, wherein at paragraph No.42 held as under:

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42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

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(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

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(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

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(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

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(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

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(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.

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This Court do not find grounds sufficient enough to

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intervene and reverse the judgment of conviction and order passed by the trial Court.

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Appeal therefore fails and the same is dismissed .

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Sd/(M.G.S. KAMAL) JUDGE

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DS,RL CT:TSM List No.: 1 Sl No.: 31

Senior Intelligence Officer v. Mwinshehe Shabani Selemani

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Senior Intelligence Officer v. Mwinshehe Shabani Selemani

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