Allowed

Vijeesh I.R. v. State of Kerala

Kerala HC8 Feb 2019CRL.A/286/2017

Case brief

AI extract

What is this about?

Three criminal appeals by Narcotics Control Bureau accused were allowed. The Kerala High Court acquitted the appellants of NDPS offenses, holding that conviction solely on statements under Section 67 of the NDPS Act recorded by detecting officers was unsafe without corroboration, where no other material evidence linked them to the seized drugs.

What did the court decide?

Appellants found not guilty; conviction and sentence set aside; appellants released from prosecution.

Vijeesh I.R. Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2019)

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'CR'

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.UBAID

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FRIDAY, THE 08TH DAY OF FEBRUARY 2019 / 19TH MAGHA, 1940

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CRL.A.No.252 of 2017

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JUDGMENT IN SC 338/2015 of ADDITIONAL SESSIONS COURT - VII, ERNAKULAM DATED 11-01-2017

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APPELLANT/ACCUSED No.3 :-

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SHAHEER P.H., S/O.LATE HAMSA, PANIKKASSERI KADAVIL, KATTOOR P.O., THRISSUR DISTRICT.

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BY ADVS.SRI.V.S.SALIM SRI.H.NUJUMUDEEN

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RESPONDENT/COMPLAINANT :-

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THE STATE REPRESENTED BY THE INTELLIGENCE OFFICER, NCB SUB ZONE, KOCHI, THROUGH THE SPCL.PUBLIC PROSECUTOR, NCB, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031.

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BY SRI.MVS NAMBOOTHIRY, SPL.PUBLIC PROSECUTOR, NCB

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08.02.2019, ALONG WITH CRL.A.286/2017 & CRL.A.424/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.Nos.252/2017, 286/2017 & 424/2018

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'CR'

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-: 2 :-

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.UBAID

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FRIDAY, THE 08TH DAY OF FEBRUARY 2019 / 19TH MAGHA, 1940

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CRL.A.No.286 of 2017

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JUDGMENT IN SC 338/2015 of ADDITIONAL SESSIONS COURT - VII, ERNAKULAM DATED 11-01-2017

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-------------

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APPELLANT/ACCUSED No.4 :-

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VIJEESH I.R., AGED 29, S/O.LATE RAVI, R/O.IRUMBRANELLUR, PAZHUVIL POST, THRISSUR DISTRICT, NOW C.No.3428, CENTRAL PRISON AND CORRECTION HOME, VIYYUR.

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BY ADVS.SRI.V.T.RAGHUNATH SMT.C.V.RAJALAKSHMI

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RESPONDENT/COMPLAINANT :-

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STATE OF KERALA REPRESENTED BY THE INTELLIGENCE OFFICER, N C B SUB ZONE, KOCHI.

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BY SRI.MVS.NAMBOOTHIRY, SPL.PUBLIC PROSECUTOR,NCB

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08.02.2019, ALONG WITH CRL.A.424/2018 & CRL.A.252/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.Nos.252/2017, 286/2017 & 424/2018

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'CR'

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-: 3 :-

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.UBAID

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FRIDAY, THE 08TH DAY OF FEBRUARY 2019 / 19TH MAGHA, 1940

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CRL.A.No.424 of 2018

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JUDGMENT IN SC 338/2015 of ADDITIONAL SESSIONS COURT - VII, ERNAKULAM DATED 11-01-2017

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-------------

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APPELLANT/ACCUSED No.2 :-

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LIJO K.J., S/O. K. JOSE, R/O.KOMBAN HOUSE, MURIYAD P.O., THRISSUR DISTRICT.

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BY ADV. SRI.V.T.RAGHUNATH

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RESPONDENT/COMPLAINANT :-

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THE STATE OF KERALA REPRESENTED BY THE INTELLIGENCE OFFICER, NCB SUB ZONE, KOCHI, THROUGH THE SPCL. PUBLIC PROSECUTOR, NCB, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682 031.

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BY SRI.MVS.NAMBOOTHIRY, SPL.PUBLIC PROSECUTOR NCB

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08.02.2019, ALONG WITH CRL.A.286/2017 & CRL.A.252/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.Nos.252/2017, 286/2017 & 424/2018

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COMMON JUDGMENT

The appellants in these three appeals are respectively the accused Nos.3, 4 and 2 in S.C.No 338/2015 of the Court of Session, Ernakulam. The case relates to the seizure of huge quantity of 1.440 kgs of Heroin from the possession of the 1^st accused at the check in counter of the departure terminal of the International Airport, Kochi at about 3.25 a.m on 18.12.2014 by a team of officers of the Narcotic Control Bureau of the Sub Zone, Kochi, led by the Intelligence Officer Samson K.Samuel. The team led

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by him detected the offence, arrested the 1^st accused, and seized the huge quantity of Heroin on the basis of a secret reliable information. After the arrest of the 1^st accused, the accused Nos.2 to 4 were also arrested at the premises of the Airport, and that too on the basis of some secret reliable information passed on to the Intelligence Officer by some other

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officer of the Narcotic Control Bureau. The 1^st accused was arrested, and the contraband article was

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CRL.A.Nos.252/2017, 286/2017 & 424/2018

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also seized from his possession at the check-in area

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inside the Airport, but the other three were arrested outside the Airport. The Intelligence Officer, who arrested the 1^st accused had not received any

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information from him on the spot regarding the other accused at the Airport, and it was not any statement given by the 1^st accused that led to the arrest of the accused Nos.2 to 4. Any way, when the NCB officers questioned the 1^st accused later under Section 67 of the Narcotic Drugs and Psychotropic Substances Act (for short 'NDPS Act'), during investigation, he gave some statement regarding the involvement of one Vijeesh and one Shaheer. They are the accused Nos.3 and 4 in this case. The said Vijeesh was also questioned by the NCB officials under Section 67 of the NDPS Act, and he gave some information regarding the involvement of one Lijo. He is the 2^nd accused in this case. Of course, nothing was seized from the possession of the accused Nos.2 to 4. As against the

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accused Nos.3 and 4 information was given by the 1^st accused, whereas as against the 2^nd accused, such

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CRL.A.Nos.252/2017, 286/2017 & 424/2018

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information was given by the 3^rd accused. Any way, investigation proceeded, and apart from the statements

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given under Section 67 of the NDPS Act, the NCB officials could not collect anything material against the accused Nos.2 to 4. However, on the basis of the statements given by them under Section 67 of the NDPS Act, the NCB officials, who conducted investigation

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concluded that they had also active role and participation in the export of Heroin attempted by the 1^st accused through the Kochi International Airport. On the finding that the 1^st accused brought huge quantity of Heroin at the Airport for export as part of a criminal design and conspiracy hatched by the four accused along with one Amir of Kuwait, the NCB

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submitted final report in court against five accused under Sections 8(C) read with Sections 21(C), 23(C),

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27(A), 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act (for short, 'the NDPS Act').

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The 5^th accused, who is a resident of Kuwait,

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could not be arrested by the NCB officials. The case

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CRL.A.Nos.252/2017, 286/2017 & 424/2018

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against him stands split up. The accused Nos.1 to 4

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faced trial before the learned VII^th Additional Sessions Judge, Ernakulam. The allegation or charge against the 1^st accused is as the principal offender, who attempted to export huge quantity of Heroin, and the allegation against the accused Nos.2 to 4 is that they either abetted him, or the 1^st accused attempted the said export as part of a conspiracy involving the others also.

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The accused Nos.1 to 4 pleaded not guilty to the charge framed against them by the trial court. The prosecution examined seven witnesses, and proved Exts.P1 to P56 documents in the trial court. The MO1 to MO18 properties were also identified. All the accused denied the incriminating circumstances, and projected a defence of total denial. The accused Nos.2 to 4 projected a definite defence that they have no connection with the 1^st accused, that they had no role or complicity in the offence allegedly committed by the 1^st accused, and that they had not been in any manner party to the possession or export of Heroin by

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CRL.A.Nos.252/2017, 286/2017 & 424/2018

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the 1^st accused. In defence, the 2^nd accused examined himself as DW1. Exts.D1 to D3 were also marked on the side of the accused. On an appreciation of the evidence, the trial court found all the four accused guilty. On conviction, they were sentenced to undergo rigorous imprisonment for 10 years each and to pay a fine of Rs.1,00,000/- each under Section 21(C) read with Section 29 of the NDPS Act, to undergo rigorous imprisonment for 10 years each and to pay a fine of Rs.1,00,000/- each under Section 27(A) read with Section 29 of the NDPS Act, and to undergo yet another term of rigorous imprisonment for 10 years each and to pay a fine of Rs.1,00,000/- each under Sections 28 and 23(C) read with Section 29 of the NDPS Act. Aggrieved by the judgment of conviction dated 11.1.2017, the accused Nos.2 to 4 have come up in appeal. It appears that the 1^st accused has not brought appeal against the conviction, and that he has been serving out the sentence in jail.

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When these three appeals came up for hearing, the learned counsel for the appellants submitted that

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CRL.A.Nos.252/2017, 286/2017 & 424/2018

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as against these three accused, there is nothing except the statements allegedly given by them under Section 67 of the NDPS Act, and that, in the absence of any other evidence or material or circumstance, the accused cannot at all be found guilty or convicted solely on the basis of the statements given by them under Section 67 of the NDPS Act. Of course, as against the 1^st accused, there is definite and clear material or evidence that the huge quantity of Heroin was seized from him. He has not challenged the judgment of conviction. Admittedly, none of the accused Nos.2 to 4 was present anywhere near the 1^st accused, or anywhere at the check-in area of the departure terminal of the Airport, when the 1^st accused was arrested and the contraband article was seized from his possession. Admittedly, the three accused were outside the Airport, and they were arrested later, after the arrest of the 1^st accused. According to the prosecution, the three accused were found

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sitting in a car at the parking area of the Airport. This is not a case of import, but a case of attempted

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CRL.A.Nos.252/2017, 286/2017 & 424/2018

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export. If this were a case of import, there could be

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some reasoning to say that the three were waiting for somebody to come outside. Here, even after the 1^st accused entered the Airport, and also collected boarding pass for travel, the three other accused remained outside. Any way, it is a fact that nothing was seized from their possession.

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The crucial question for decision in these

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three appeals is whether an accused can be convicted under the NDPS Act as persons having constructive liability, solely on the basis of the statements given by them under Section 67 of the NDPS Act.

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follows :-

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“ 67. Power to call for information, etc. - 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 provisions of this Act,-

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(a) call for information from any person for the purpose of satisfying himself whether there has been any

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CRL.A.Nos.252/2017, 286/2017 & 424/2018

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contravention of the provisions of this

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Act or any rule or order made thereunder;

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(b) require any person to produce or deliver any document or thing useful or relevant to the enquiry;

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facts and circumstances of the case.”

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The powers under Section 67 of the NDPS Act can be

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exercised only by the officers authorised to discharge functions under Section 42 of the NDPS Act, and such

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powers are given to the officers to collect information or materials for examining whether there

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has been any contravention of the provisions of the

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Act, or whether anybody has committed such violation, or how such act was committed. The authorised officer can examine any person acquainted with the facts and

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circumstances of a case. The purpose of this

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provision is to collect materials as part of investigation or enquiry, to find out or detect whether there has been commission of any offence under

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the Act, or violation of any provision of the Act, or to detect the involvement or complicity of anybody in

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the commission of the offence. It is not really meant

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CRL.A.Nos.252/2017, 286/2017 & 424/2018

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as a provision enabling to record “confession statements”. However, if the statement given by an accused under Section 67 of the NDPS Act contains a confession that can be accepted and admitted in evidence as extra judicial confession, subject to the admissibility test prescribed under the Evidence Act. A statement given under Section 67 of the NDPS Act may

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contain confession portion, or it may not contain confession portion. If at all the statement recorded under Section 67 of the NDPS Act contains anything amounting to confession, it cannot be simply admitted

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in evidence. When the statement contains any confession, that confession can be accepted and admitted in evidence only when the confession is properly and legally proved. It is well settled that merely marking a statement will not suffice to prove the statement of confession. If at all the statement recorded under Section 67 of the NDPS Act contains any confession portion, the person who recorded the confession, or the person to whom the said extra judicial confession was made by the accused must come

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CRL.A.Nos.252/2017, 286/2017 & 424/2018

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to court and tell the court, how the confession statement was made by the accused, what exactly is the confession made by him, and whether it was voluntarily made by him. Thus, the burden is heavy on the person, who relies on a confession to prove before the court that the said confession was heard by him directly from the mouth of the accused, that the accused made the confession voluntarily without being influenced or intimidated or prompted by anybody, and the person will have to re-tell the specific statements amounting to confession. This Court has explained this in Rajan

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v. State of Kerala [2018 (3) KLT 422].

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Now, let me see, whether a statement recorded by the Investigating Officer under Section 67 of the NDPS Act can be the sole basis for a conviction under the NDPS Act. Ext.P5 is said to be the statement

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given by the 1^st accused, Ext.P7 is said to be the statement given by the 2^nd accused, Ext.P28 is said to be the statement given by the 3^rd accused, and Ext.P31

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is said to be the statement given by the 4^th accused

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under Section 67 of the NDPS Act. Of the four

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CRL.A.Nos.252/2017, 286/2017 & 424/2018

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statements, Ext.P5 was recorded by PW1, who detected

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the offence, and the other statements were recorded by

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PW2, who had also been part of the detection team led by PW1. The information regarding the accused Nos.2

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to 4 was received by PW2 after the arrest of the 1^st accused. Thus, no doubt, all the statements were recorded by the officials, who were part of the detection team. Of course, if it is a mere statement under Section 67 of the NDPS Act, containing some information regarding the alleged offence, or the participation of somebody in the offence, the statement will have it's own value. But, when the

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statement contains some confession, the court cannot

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casually or simply admit it as a confession, especially when it is recorded by a member of the detection team.

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The learned Standing Counsel for the NCB

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cited Iqbal Moosa Patel v. State of Gujarat [(2011) 2 SCC 198], and submitted that on the basis of the

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statement given under Section 67 of the NDPS Act, an accused can be convicted. That is a case, where there

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CRL.A.Nos.252/2017, 286/2017 & 424/2018

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was recovery also from the accused, who gave the

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alleged statement. Of course, as regards the persons

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against whom there are other materials than the mere statement under Section 67 of the NDPS Act, the statement can be accepted as a corroborative piece. But here, the position of the accused Nos.2 to 4 is entirely different. As against them, there is nothing except the statements. The learned counsel also cited

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M.Prabhulal v. Assistant Director, Directorate of Revenue Intelligence [(2003) 8 SCC 449] wherein the Hon'ble Supreme Court held that if the voluntariness of the statement amounting to confession, recorded

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under Section 67 of the NDPS Act is proved, a

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conviction can be made by the court on the basis of such a confession. But, in that case also, there was

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some other evidence against the person, who gave the statement under Section 67 of the NDPS Act.

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In Ram Singh v. Central Bureau of Narcotics [(2011) 11 SCC 347], the Hon'ble Supreme Court held

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that before acting solely on the confession made under Section 67 of the NDPS Act, the court must require

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CRL.A.Nos.252/2017, 286/2017 & 424/2018

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some corroboration as a rule of prudence, but as an

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abstract proposition of law, it cannot be said that conviction cannot be maintained on the basis of confession made under Section 67. In that case also,

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there was some other evidence against the accused. In

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Union of India v. Leen Martin and Another [2018 KHC

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6096 = AIR 2018 SC 991], the Hon'ble Supreme Court held that solely relying on the statements made by an accused under Section 67 of the NDPS Act to convict

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him, would be neither prudent nor safe, especially when the accused has retracted from the statement. The Hon'ble Supreme Court also cautioned that such

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statement given to official witnesses, who are part of the prosecution will not be free from infirmities, and such statements cannot be the sole basis for convicting an accused.

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As regards the admissibility or evidentiary value of extra judicial confession generally, the proposition stands well settled, that generally such a confession can be acted upon for a conviction, but rule of prudence and justice requires that there shall

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CRL.A.Nos.252/2017, 286/2017 & 424/2018

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be some sort of corroboration. In Aftab Ahmad Anasari

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v. State of Uttaranchal [(2010) 2 SCC 583], the

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Hon'ble Supreme Court cautioned, following the earlier decisions, that extra judicial confession is a very weak piece of evidence, however, it can be acted upon if it comes from the mouth of an unbiased witness in

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respect of whom, nothing even remotely is brought out indicating that he may have motive for implicating the accused. The Hon'ble Supreme Court has cautioned that corroboration will have to be insisted on when there is something to suspect that the person to whom the confession is made, or the person who retold the confession in court, cannot be said to be a fully independent witness. In this case, the alleged extra judicial confession in the form of statements under

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Section 67 of the NDPS Act, was recorded by two

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members of the team, who detected the offence. It

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cannot be said to be a confession made to an

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independent person. When the person to whom the

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said confession was made, or the person who recorded

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the statements is an integral part of the

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CRL.A.Nos.252/2017, 286/2017 & 424/2018

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prosecution as detecting Officer, the court must require some corroboration to act upon the confession. As already stated, when the statements recorded under Section 67 of the NDPS Act contain something amounting to confession, it cannot be simply accepted or acted upon as a mere statement under Section 67.

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In this case, admittedly, there is no other material or circumstance against the three appellants. Just because they were seen waiting at the parking area of the Airport in a car, they were arrested on suspicion. The prosecution has no case that anybody had seen the 1^st accused in the company of these three appellants, or anybody had seen these three appellants alighting the 1^st accused at the premises of the Airport, or that anybody had seen any of these three appellants in any manner helping the 1^st accused at the premises of the Airport. To rope them in on an allegation of conspiracy, there must be some material. That the 1^st accused had contact with the others over telephone immediately prior to the detection will not by itself prove conspiracy. The prosecution has no

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CRL.A.Nos.252/2017, 286/2017 & 424/2018

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case that anybody had seen any of the appellants with

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the 1^st accused anywhere, or that anybody had seen the

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four accused meeting secretly or otherwise anywhere near the Airport or at any other place. The accused

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Nos.2 to 4 were seen for the first time by the detection team at the premises of the Airport, and they were arrested just because somebody gave an

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information through phone that they are the companions of the 1^st accused, and they had come there along with the 1^st accused. To convict the three appellants for involvement in the offence committed by the 1^st accused constructively there must be some material either to prove that commission of offence by the 1^st accused was abetted by them in any manner, or that the 1^st accused attempted to export Heroin as part of a criminal

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design hatched by him with the others. The

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prosecution does not have any concrete material against the appellants other than the statements given by them under Section 67 of the NDPS Act. Another

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very weak material projected by the prosecution is the telephone conversation between the accused. It is not

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CRL.A.Nos.252/2017, 286/2017 & 424/2018

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known what are the contents of the conversation, or

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what the different accused had talked to each other. Mere telephone contacts in the absence of any other circumstance will not by itself prove conspiracy or abetment.

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In the result, the three appeals are allowed.

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The appellants herein are found not guilty of the offences under Section 8(C) read with Sections 21(C), 23(C), 27(A), 28 and 29 of the NDPS Act, 1985, and accordingly, they are acquitted of those offences in appeal under Section 386(b)(i) Cr.P.C. The conviction and sentence against them in S.C. No.338/2015 of the court below will stand set aside, and the appellants will stand released from prosecution.

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Communicate the gist of this judgment to the

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Superintendent of the Jail, where they have been undergoing sentence.

Sd/P.UBAID JUDGE

//TRUE COPY//

P.A. TO JUDGE

ma/jvt/rkj/14.2.2019

Vijeesh I.R. v. State of Kerala

Case brief

What is this about?

What did the court decide?

Vijeesh I.R. v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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