Partly allowed

Mr. K.S.v.Prasad, v. State rep by Senior Intelligence Officer

Telangana HC27 Apr 2012CRLA/147/2009

Case brief

AI extract

What is this about?

The Court dismissed appeals challenging convictions under the NDPS Act, holding that evidence proved conspiracy and possession against A.1, A.3, A.4, and A.6, but upheld acquittals for A.7 to A.10. However, it reduced sentences from 20 years to 10 years and fine from Rs.2 lakhs to Rs.1 lakh for convicted appellants as minimum punishment was prescribed.

What did the court decide?

Convictions of A.1, A.3, A.4, and A.6 upheld; sentences reduced from 20 years to 10 years imprisonment and fines from Rs.2 lakhs to Rs.1 lakh; acquittals of A.7 to A.10 upheld.

Mr. K.S.v.Prasad, Vs State rep by Senior Intelligence… — Narcotics (NDPS) | Telangana HC (2012)

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THE HON’BLE SRI JUSTICE RAJA ELANGO

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CRIMINAL APPEAL Nos.1535 of 2008, 1615 of 2008, 147 of 2009 and 274 of 2009.

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Date : 27.04.2012

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Crl.A.Nos.1535 of 2008, 1615 of 2008 and 147 of 2009.

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Between : Anil Tyagi (A.5) Mohan Mankani (A.1) K.S.V.Prasad (A.3) Ch.B.S.R.Prasad (A.4) Jagan Mohan Rao (A.6)

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…. Appellants-Accused

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a n d Director of Revenue Intelligence, Hyderabad … Respondent-complainant Crl.A.No.274 of 2009 Between : Director of Revenue Intelligence Hyderabad …. Appellant-Complainant a n d

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Suresh Baban Kedari & others

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… Respondents-A.7 to A.10

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THE HON’BLE SRI JUSTICE RAJA ELANGO

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CRIMINAL APPEAL Nos.1535 of 2008, 1615 of 2008, 147 of 2009 and 274 of 2009. COMMON JUDGMENT:

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Since the judgment under challenge in all these appeals is one and same, all the appeals are heard together and disposed of by this common judgment.

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Crl.A.No.1535 of 2008 is filed by A.5 challenging the conviction imposed on him, Crl.A.No.1615 of 2008 is filed by A.1 challenging the conviction imposed on him, A.3, A.4 and A.6 preferred Crl.A.No.147 of 2009 challenging the conviction imposed on them and the Directorate of Revenue Intelligence, Regional Unit, Hyderabad, filed Crl.A.No.274 of 2009 challenging the acquittal of A.7 to A.10 by impugned judgment. By the impugned judgment, the learned Metropolitan Sessions Judge found A.1 guilty of the offences punishable under Sections 22, 25A, 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’), A.3 guilty of the offences punishable under Sections 22, 25A and 29 of the NDPS Act, A4 guilty of the offences punishable under Sections 22, 25, 25A and 29 of the NDPS Act, A.5 guilty of the offences punishable under Sections 22, 25 and 29 of the NDPS Act, A.6 guilty of the offences punishable under Sections 22, 25, 25A and 29 of the NDPS act while A.7 to A.10 not guilty of the charges framed against them respectively. Accordingly, the learned Sessions Judge sentenced A.1 and A.3 to A.6 for the offence under Section 22 of the NDPS Act to undergo rigorous imprisonment for 20 years and to pay fine of Rs.2,00,000/- each for the offence under Section 22 of the NDPS Act and in default to suffer simple imprisonment for one year each; further sentenced A.1, A.3, A.4 and A.6 to undergo rigorous imprisonment for 10 years and to pay fine of Rs.1,00,000/- each for the offence under Section 25A of the NDPS Act in default to suffer simple imprisonment for six months; further sentenced A.1 to undergo rigorous imprisonment for 20 years and to pay fine of Rs.2,00,000/- for the offence punishable under Section 27A of the NDPS Act in default to suffer simple imprisonment for one year; and also sentenced A.1 and A.3 to A.6 to undergo rigorous imprisonment for 20 years and to pay fine of Rs.2,00,000/- each for the offence under Section 29 of the NDPS Act in default to suffer simple

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imprisonment for one year for the offence under Section 29 of the NDPS Act; and further sentenced A.4 to A.6 to undergo rigorous imprisonment for 20 years and to pay fine of Rs.2,00,000/- each for the offence under Section 25 of the NDPS Act in default to suffer simple imprisonment for one year and further ordered that all the sentences of imprisonment of A.1 and A.3 to A.6 be run concurrently. Further the other accused i.e. A.7 to A.10 were acquitted.

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The allegations against the accused as seen from the judgment under challenge are that the Senior Intelligence Officer of the Directorate of Revenue Intelligence ( in short ‘DRI’), Hyderabad, filed complaint against A.1 to A.10 alleging that specific intelligence was gathered about manufacture of MDMA and Methaqualone, which are psychotropic substances, were being manufactured at Limelight Drugs (P) Limited (in short “LLDPL’), Plot Nos.123 and 124, Kolhar Industrial Area, Bidar and about converting the same into tablets at Flowrence Lab (in short ‘FL’), Plot No.D-118, IDA, Phase-I, Jeedimetla, Hyderabad, and that gist of intelligence was reported to the Deputy Director, DRI, and that after obtaining search authorizations, DRI officers along with Central Excise Officers conducted searches on 05.06.2004 at 1) factory premises of LLDPL at Bidar, 2) factory premises of FL, 3) room Nos.309 and 311 of Hotel Asrani International, Secunderabad, 4) residential premises of A.3 at Srinagar Colony, Hyderabad, and 5) residential premises of A.5 at Srinagar Colony, Hyderabad, in the presence of independent witnesses under cover of respective panchanamas and seized several psychotropic substances and controlled substances and other incriminating material as detailed therein and that those substances on test with field test kits were found to be MDMA, Methaqualone, Anthranillic Acid, Piperonal, Ortho Toludine and that plants, machinery, lab equipments, packing material, dyes and punches etc., were also inventoried and seized from the factories and that samples of psychotropic substances and controlled substances were taken from each place and they were seized and

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sealed and that personal searches of A.3 and A.6 was done at LLDPL and of A.1, A.2 and A.5 at FL after following due procedure and incriminating material as well as psychotropic substances were seized during personal searches and that currency of Rs.6,00,000/- was seized from trolley suitcase of A.1 and that after recording their statements, A.1 to A.3 and A.5 to A.7 were arrested on 06.06.2004 and that seized materials were deposited for safe custody with Superintendent of Central Excise, Hyderabad, who is the designated officer and that representative samples of psychotropic substances and raw materials were forwarded to the Deputy Chief Chemist, Customs House, Chennai, for analysis on 07.06.2004 and that DRI, Zonal Unit, Mumbai, conducted searches at residential houses of A.1, A.2 and A.7 on 05.06.2004, 14.06.2004 and 28.06.2004 and that during investigation, several witnesses were examined and their statements were recorded by DRI officers and that DRI officers conducted search of the premises in plot No.62-C, Kolhar Industrial Area, Bidar, belonging to P.W.5, who is a chemical dealer and where A.3 secreted material and seized drums containing Ortho Toludine, Acetic Anhydride and also mangled and broken plastic drums and that contents of those drums were tested positive for Acetic Anhydride and that analysis reports of samples revealed that the samples were Methaqualone, MDMA, Anthranillic Acid, Amphetamine, Piperonal, Acetic Anhydride and Ortho Toludine and that documents, chits etc., seized from A.1 to A.3 and A.7 and at different places were sent to Government Examiner for Questioned Documents (in short ‘GEQD’), Hyderabad, and report of the expert on those documents was obtained.

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As per further allegations in the complaint, investigation revealed that A.1 and A.2 hatched conspiracy in the year 2003 at the behest of overseas narcotic dealer Hazi to manufacture and supply 4 metric tones of Methaqualone and 140 kgs of MDMA tablets for consideratin of US $ 100,000 to 150,000 and that A.1 and A.2 entered into verbal agreement with A.3, A.4, A.6 and Late TVSS Prasad, who are General

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Manager, Managing Director and Directors respectively of LLDPL, for manufacture of Methaqualone and MDMA in bulk form and that A.3 is technically qualified person and old friend of A.2 and that the consideration agreed for manufacture was Rs.10,00,000/- per MT of Methaqualone and Rs.70,000/- per kg of MDMA in additional to cost of raw materials and that A.1 and A.3 with active assistance of A.3 roped in A.5 who is managing partner of FL and verbal agreement was entered into with him at Hotel Asrani International, Secunderabad, to convert Methaqualone and MDMA manufactured at LLDPL into tablets and that the consideration agreed was 40 paise per tablet of MDMA and 60 paise per tablet of Methaqualone and Methamphetamine and that A.1 through A.2 paid Rs.50,00,000/- to A.3 and that A.1 paid Rs.6,25,000/- to A.5 towards conversion charges and Rs.50,000/towards string of Methaqualone powder in this factory premises and that A.1 also supplied dyes and punches required for tableting and packing material to A.5 and that A.5 with the assistance of his employee A.8 used to complete the process of tableting and that A.1 and A.2 used to visit LLDPL and FL to monitor the progress of production of psychotropic substances and to supervise quality of tablets and that A.3 procured raw material and lab equipment for manufacture of MDMA without bills from suppliers in Hyderabad and that using his technical knowledge, A.3 has manufactured Methaqualone and MDMA in bulk form with the assistance of A.4 and A.6 and supplied the same to A.1 and A.2 and that A.3 instructed P.W.5 through P.W.47 and got destroyed Acetic Anhydride and Ortho Toludine drums which were procured for manufacture of psychotropic substances and stored at the premises of P.W.5 and that the above drums which were dumped in an unfinished well in the premises of P.W.5 were subsequently retrieved and seized under panchanama dt.20/21.08.2004 and that A.7 who is employee and assistant of A.2 abetted the conspiracy hatched by A.1 and A.2 and he used to accompany A.2 to Hyderabad and assisted A.8 in tableting and

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packing at FL during night times and that A.7 transported Anthranillic Acid and other raw materials required for manufacture of psychotrpic substances to LLDPL by mis-declaring the same as common chemicals and that from room No.309 of Hotel Asrani International where A7 stayed, MDMA tablets weighing 48 grams, rubber stamps, blank invoices and other documents were seized under the cover of panchanama and that A.8 received psychotropic substances in powder form, packing material and punches in the absence of A.5 from A.2 and A.7 and stored them in factory premises of FL and also secreted tablets of psychotropic substances in servant room on the instructions of A.1 and carried tablets of psychotropic substances and handed over to A.1 at Hotel Asrani International and that A.9 proprietor of Matrix Pharma Chem and Sunrise Chemicals at Ahmedabad and manufacturer and trader of Anthranillic Acid, supplied 2700 kgs. of the same to A.10 on his request by invoicing/mis-declaring the same as 5 Sulpho Anthranillic Acid and raising invoices in the name of Swan Impex (P) Limited, Mumbai, and made such supply in plain bags without indicating name of the material and that A.9 suppressed the fact of sale of Anthranillic Acid in the above manner in his returns to Narcotic Control Bureau (in short ‘NCB’) and that A.10 procured 2700 kgs. of Anthranillic Acid from A.9 and supplied the same to A.2 and that A.10 arranged 2 metric tones of Ortho Toludine to A.2 without bills. Hence, the complainant herein filed a complaint against A.1 to A.10 for various offences punishable under the Act.

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Cognizance of the case was taken on file under Sections 8 (c), 9A, 25, 27A and 29 read with Sections 22, 25, 25A, 27A and 29 of the NDPS Act against A.1 to A.10.

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A.1 was charged for the offence punishable under Sections 22, 25A, 27A and 29 of the NDPS Act for contravention of Sections 8 (c), 9A, 27A and 29 of the said Act. A.2 was charged for the offence punishable Sections 22, 25A and 29 of the NDPS Act for contravention of Sections 8 (c), 9A and 29 of the said Act. A.3 was charged for the offence punishable under Sections 22, 25A and 29 of the NDPS Act

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for contravention of Sections 8 (c), 9A and 29 of the Act. A.4 was charged for the offence punishable under Sections 22, 25, 25A and 29 of the Act punishable under Sections 8(c), 9A, 25 and 29 of the said Act. A.5 was charged for the offence punishable under Sections 22, 25 and 29 of the NDPS Act for contravention of Sections 8 (c), 25 and 29 of the said Act. A.6 was charged for the offence punishable under Sections 22, 25, 25A and 29 of the NDPS Act for contravention of Sections 8 (c), 9A, 25 and 29 of the said Act. A.7 was charged for the offences punishable under Sections 22, 25A and 29 of the NDPS Act for contravention of Sections 8 (c), 9A and 29 of the said Act. A.8 was charged for the offence punishable under Sections 22 and 29 of the NDPS Act for contravention of Sections 8 (c) and 29 of the said Act. A.9 was charged for the offence punishable under Section 25A of the NDPS Act for contravention of Section 9A of the said Act. A.10 was charged for the offence punishable under Sections 25A and 29 of the NDPS Act for contravention of sections 9A and 29 of the said Act. All the accused denied the charges and claimed for trial.

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At this stage, A.2 was reported to have died. Hence, the case against A.2 was abated and the case was proceeded further against A.1, A.3 to A.10 only.

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During the trial, in order to prove the guilt of the accused, Prosecution examined PWs 1 to 68 and marked Exs.P.1 to P.496 apart from marking MOs 1 to 220. After closure of Prosecution evidence, A.1, A.3 to A.10 were examined under Section 313 Cr.P.C. in which they denied the incriminating evidence put to them available in the evidence of Prosecution witnesses. On behalf of the accused, DWs 1 to 7 were examined and Exs.D.1 to D.6 and D.6(A) were marked. After hearing the arguments on both sides and on appreciation of entire evidence both oral and documentary, the learned Sessions Judge rendered the impugned judgment convicting A.1, A.3 to A.6 and acquitting A.7 to A.10 for the charges framed against them as stated above and the same is challenged before this Court in these appeals.

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At this stage, A.5 died. Pursuant thereto, leave of the Court was sought for by the legal representatives of A.5 to pursue the appeal and this Court also granted leave vide Crl.M.P.No.1535 of 2008.

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Even though the Prosecution examined number of witnesses to prove its case, the entire prosecution mainly rests upon the evidence of PWs 1, 2, 4, 5, 7, 8, 12, 13, 14, 26, 27, 31, 47, 50 to 59, 62, 63, 64 and 67. Hence, the gist of their evidence is recorded below for better appreciation of the matter.

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PW.1 K.Parthasaratha Reddy – Intelligence Officer, Directorate of Revenue Intelligence Officer, Hyderabad, deposed that on 05.06.2004 in the early hours i.e. about 3 a.m. he was called by Sri D.Aroop Das, Senior Intelligence Officer, DRI, and was informed about specific intelligence regarding Methaqualone widely known as Mandrax and MDMA widely known as Ecstasy are being manufactured and stored in the premises of LLDPL. Further, he gave a search authorization 1/2004 dated 05.06.2004 and directed him to proceed to LLDPL along with a team of officers consisting from the office of DRI and Central Excise, Hyderabad. Accordingly, around 4.30 a.m. he along with other officers viz., Sriram, AVS Mallikarjuna Rao, Senior Intelligence Officers, G.Raja Sekhar Reddy, Intelligence Officer, and other Central Excise officers proceeded to Bidar enroute of Zaheerabad. They took two independent witnesses namely R.Ram Reddy and Gopal Reddy at about 7.45 a.m. Further, he informed the said witnesses regarding the search to be conducted at factory premises of LLDPL and requested them to be the witnesses for the proceedings for which they readily accepted. Enroute to the factory, he told the witnesses that they have specific intelligence that certain psychotropic substances viz. Methaqualone known as Mandrax and MDMA known as Ecstasy are being manufactured and stored in the abovesaid factory premises and shown them the search authorization dated 05.06.2004 under Ex.P.1.

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On 05.06.2004 by 8.45 a.m. he along with team of officials reached the premises of LLDPL and they were received by KSV

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Prasad and N.Jagan Mohan Rao, who introduced themselves as General Manager and Director of LLDPL respectively. Then, he introduced the officials and also the witnesses to A.3 and A.6 and also shown Ex.P.1 in which A.3 and A.6 appended their signatures with date. A.3 and A.6 arranged for conducting search and they were taken by A.3 and A.6 to the entire factory premises. A diagram as shown in Annexure-I to the panchanama dated 05.06.004 was also drawn. Then he asked A.3 and A.6 regarding the products manufactured by them for which they replied that they are manufacturing intermediates of cosmetics. Various raw materials and other items are detailed in Annexure-III appended to panchanama under Ex.P.2, which is written by this witness. All the annexures are prepared by his colleague Mr.G.Rajasekhar Reddy, Intelligence Officer, DRI.

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Further, during the search at raw material shed they found seven HDPE bags containing blackish brown powder. When enquired, A.3 and A.6 replied that the same is Methaqualone and they further informed that it is not their regular product. Then, he conducted test with his testing kit, which answered positively for methaqualone. Prior to conducting test, he explained he witnesses the utility of the testing kit and its functions. He further deposed that A.3 and A.6 shown inprocess and intermediate stages of MDMA and the same was also tested with the field test kit, which is positive in the presence of MDMA. Further, he identified yellowish green powder, which was informed to be of Anthranalic acid by A.3 and A.6. When questioned, they answered that the same was supplied to them by two Mumbai based businessman viz., Mohan and Ramesh Rawat. He further deposed that A.3 and A.6 stated that Anthranalic Acid is a controlled substance and cannot be sold without intimation to the government officials. He further deposed that A.3 and A.6 also stated that the said acid is supplied to them for manufacture of Methaqualone. Said recovery of the entire contraband is detailed in Annexure-III i.e. Ex.P.5 and when the officials conducted personal search on A.3 and A.6, they

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found some papers and visiting cards. Then, they weighed various materials and finished goods as listed in Ex.P.5. Further, he deposed that A.3 and A.6 were informed that the said materials are liable to be confiscated and also directed them not to remove the machinery since it is not practically possible to remove the same at the time of the search. Further, the officials have also seized samples in polythene covers and in turn placed in paper envelops with cloth lining, which contains the signatures of A.3 and A.6 and also the witnesses and also the packets are given numbers and also they followed the procedure and affixed signatures and also seized the said sample covers. The other materials were kept in the same vessels after sealing them and also the materials found in loose condition were packed in a poly propylene bags. The entire proceedings conducted in the presence of independent witnesses. A.3 and A.6 have appended their signatures and date on each and every document recovered during their personal search and office search. The said seizure and the preparation of the panchanamas marked before the trial Court under Exs.P.1 to P.51 and he seized materials are marked as MOs 1 to 55.

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P.W.1 further deposed regarding the instructions received by him on 19.08.2004 from the Deputy Director, DRI, and accordingly on 20.08.2004 he proceeded to Plot no.62-C Kolhar Industrial Area, Bidar, on the basis of search authorization dated 20.08.2004 searched the premises along with two witnesses Rama Krishna and Santosh Tapure after following the formalities. There they met P.W.5 Chowdary and seized 6 metal drums, 2 plastic drums containing Acetic Anhydride and they continued the search on 21.08.2004 also and totally 29 plastic drums and 9 MS drums were retrieved from the well situated in the abovesaid premises. Among 29 plastic drums, 4 drums contain Acetic Anhydride and 9 MS drums contain Ortho Toludine. The drums were seized and numbered. Relevant documents are marked as Exs.P.57 and P.58 and material objects as MOs 56 and 57. P.W.1 drawn panchanama dated 20/21.08.2004 and on 22.08.2004 he submitted report under Ex.P.62 to his superior officer. The witness

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further speaks about transporting the seized goods from Bidar to Hyderabad and depositing the same in Customs Godown at CFS, Kukatpally, Hyderabad, and relevant documents are marked as Exs.P.63 to P.65.

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P.W.2 G.Gopal Reddy, who is the resident of Zaheerabad and working as Executive Logistics in Global Trading Company at Zaheerabad, deposed that on 05.06.2004, his boss P.Rami Reddy asked him to come to the Guest House at 7.30 a.m. and he went to the Guest House at 8.00 a.m. At that time P.W.1 and other DRI officials were present in the Guest House and they shown him search warrant and requested him to act as a mediator. Having agreed for the same, he accompanied P.W.1 along with Ram Reddy and other officials to Bidar in three jeeps. They reached LLDPL at 9.00 a.m. He further deposed that he saw A.3 and A.6 in the said premises where the search was conducted by P.W.1. Search warrant was shown to him in which himself and Ram Reddy signed apart from A.3 and A.6. Search was conducted in his presence. After the search, the contrabands were subjected to examination by the field test kits and also the samples were taken in his presence in which also he signed along with A.3 and A.6 and Ram Reddy. He also deposed in the same manner as deposed by P.W.1 before the Court regarding the search and seizure. P.W.2 further stated that the search was completed at 5.30 p.m. on that day.

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P.W.4 Ramakrishna Sutar, who is resident of Bidar, deposed that on 20.08.2004 at about 7.00 a.m. while he was going for morning walk, one Qualis vehicle stopped in front of him and the inmates of the vehicle informed him that they are the DRI officials and they informed him regarding the inspection going to be conducted in Kolhar Industrial Area and asked him help, upon which, he accompanied the DRI officials. He further stated that one of the officers introduced himself as Reddy. At the place of search, they saw watchman Babu Rao and in turn he informed that one Chowdary is the owner of the said premises.

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The search warrant under Ex.P.56 was shown to Chowdary wherein himself and Chowdary signed. In his presence, search proceedings were started. He further deposed as deposed by P.W.1, who conducted search in the said premises, and also supported the case of the prosecution that he signed in the documents and also deposed about the recovery of material objects.

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P.W.5 K.Rama Rao Chowdary, who was doing Chemical Trading business, deposed that earlier he worked under A.3 for sometime. He further deposed that he is having a godown at plot No.62-C, Kolhar Industrial Area, Bidar. His Firm’s name is Sai Deepti Chemicals. He also deposed that he know A.3 and A.6 who were present in the Court hall. The distance between his godown and LLDPL is 1 k.m. It is his further evidence that on the request of A.3 he gave permission to keep some of his materials like drums in his godown. One Sreenivas Rao who is the supervisor of LLDPL in the month of June, 2004, informed him that A.3 and A.6 sent him to destroy the drums kept in his godown, in turn, he informed him to bring some trolley since they cannot be destroyed in his place. Hence, he concealed the drums in the abandoned well located in the said premises. He further deposed regarding the excavation of the said drums and also the search conducted and panchanamas prepared by the DRI officials.

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P.W.7 M.N.Charyulu, who was working as an Intelligence Officer, deposed that on 05.06.2004 at about 5.00 a.m. he was called by Sri Aroop Das, Senior Intelligence Officer, and was informed about the specific intelligence regarding manufacture and storage of psychotropic substances viz., MDMA and Methaqualone at the factory premises of FL, and authorization letter under Ex.P.97 was given to him to proceed to the said place along with DRI officials, Central Excise and Customs officers. He accordingly proceeded to FL along with others. Enroute he picked two independent witnesses viz., Suprakash Basu and Sri Pawan Bajaj. On his way, he explained the witnesses regarding the intelligence report and his intention to search

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the said premises on the basis of the said authorization. They reached FL at about 8.45 a.m., at that time factory gate is closed. On their knocking the door, one Sreenivas Rao opened the gate door. When they enquired about the owner of the premises, they were taken to the I floor of the factory where three persons were present in a room and they identified themselves as Anil Tyagi (A.5), Managing Partner of FL, Mohan Mankani (A.1) and Ramesh Rawat (A.2), customers of FL from Bombay. Then the officials and witnesses introduced themselves. Further, the witness shown the authorization and disclosed their intention to search the premises. Anil Tyagi appended his signature in Ex.P.97 and the witnesses also signed on it. The persons from Bombay were also asked to be present during the search and they also signed in Ex.P.97.

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During the search, he found four large size black plastic bags containing 71 aluminum laminated packets with printed markings ‘SIMBA NUMBER ONE’ and he opened each of the said aluminum laminated packet and found tablets of pink, yellow, blue and green colour therein with markings as described in panchanama. The said laminated packets were kept in black plastic bags as per the colour of the tablets in the said packets. They examined the punches and dyes found in the said room. On further search, they found 36 numbers of HDPE/PP woven sacks, one black plastic bag containing 4 polythene packets with sequre shape pink coloured tablets, two polythene covers with printed marking ‘BOSS YES BOSS’ and one aluminum laminated packet with printed marking ‘SIMBA NUMBER ONE’ and aluminum laminated pouches with printed marking ‘NUMBER ONE’, five boxes and one PP woven bag, all containing punches and dyes and other materials. Further, the said contrabands were subjected to test with the help of field test kit in the presence of the said witnesses and also A.1, A.2 and A.5. The result was positive as Methaqualone and MDMA and the square tablets of black colur tested positive for Methamphetamine.

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Subsequently, a personal search was conducted on A.1, A.2 and A.5. Though some documents and things were found in the person of A.1 and A.2, but nothing could be recovered from A.5. In addition A.1 was found in possession of tables of yellow, pink and green colour containing markings as described in panchanama. These tablets were similar to that of the tablets found in the servant room. Then, test was conducted with the field test kit and the said tablets were proved positive of MDMA. The details of the tablets found in person of A.1 are listed in Annexure-V(B) to the panchanama. P.W.7 further deposed that they weighed the powder and floor sweepings of Methaqualone, tablets and floor sweepings of MDMA, tablets of Methamphetamine, packing material found in the Wastage room and servant room and MDMA tablets found on the person of A.1 and details of the same were given in Annexure-II, III and V(B) panchanama. P.W.7 also deposed regarding the remaining seizure and also the documents seized in the said premises. Further, he explained regarding the test conducted and the manner in which the contrabands were seized and sealed and subsequently send to the Godown for safe custody.

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P.W.8 - Pawan Bajaj, who is a resident of Hyderabad, deposed that earlier he worked as a clerk in Jacotia Plastics and on 05.06.2004 at about 6.30 a.m. he was called by his employer and was directed to act as a mediator. Accordingly, he accompanied DRI officials and he accompanied them to the factory in Jeedimetla. He was informed about the authorization letter, the intention to search the premises. One Vasu, who is his colleague, was also called by the DRI officials to act as a mediator. He deposed in the same lines with the evidence adduced by P.W.7 and he also stated regarding the fact that he signed in exhibits concerned with the panchanams in connection with the seizure of the materials from the said premises.

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P.W.12 – Natesh, who was working as Inspector of Central Excise, Anti Evasion, Hyderabad-II Commissionerate, deposed that at the request of DRI officials he appeared before the officials on 05.06.2004, a search warrant under Ex.P.188 was given by the Senior

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Intelligence Officer to him to search Room No.311, Hotel Asrani International (HAL) to conduct search. They requested one Suresh to act as a mediator, for which he accepted. He along with other officials and mediators went to Room No.113, HAL and knocked the door, one personal by name Santhosh opened the door and on they have shown the search warrant to said Santhosh and obtained his signature in it. During the search, the found trolley bag containing polythene cover with a cash of Rs.6 lakhs, some visiting cards and news papers. When questioned, said Santhosh informed them that the same belongs to one Mohan. When they enquired about said Mohan, Santhosh informed them that he went out in the morning at 7.00 a.m. A panchanama under Ex.P.189 was scribed by P.W.12 wherein said Santhosh also signed.

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P.W.13 – Suresh, who was working as Sales Executive in a Private Company, is the witness who accompanied P.W.12 and he also deposed in the same lines of P.W.12.

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P.W.14 – M.Narsing Rao, who was working as Intelligence Officer, deposed that as per the directions of the Senior Intelligence Officer on 05.06.2004, on the basis of search authorization under Ex.P.200, he went to Flat No.204, Godavari Block, Divya Sakthi Apartments, Navodaya Colony, Srinagar Colony, Hyderabad, (residence of A.3) along with two independent witnesses viz., Uma Maheshwar Rao and Srinivas, where they found one Srinivas Chakravarthi, son of A.3. They shown the search of warrant to said Chakravarthi wherein he appended his signature. On search of the premises, they found some polythene covers with some powders and the same was tested with the help of spot test kit, which resulted positive for the presence of Amphetamine, a psychotropic substance. They also tested white coloured powder packed in news paper, which also resulted positive for the presence of Methaqualone. The powder weighed 12.5 grams, the news paper weighed around 550 grams. He further deposed to have complied all the formalities. The samples

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were taken and the formalities were completed. Further, he prepared report under Section 57 of the Act, which is marked as Ex.P.207. The seized materials were handed over to the Senior Intelligence Officer along with report.

¶48

PW-26 – M.Devender, who was doing chemical business, deposed that earlier he worked as Sales representative in Pure Chemical Company, Chennai, at that time he came in touch with A.3, who was having office at Yellareddiguda and he supplied Acetic Acid, Methelene chloride, Iso Propyl Alcohol, Iron powder, Aluminum foil and caustic soda flakes to A.3. He supplied the said chemicals on behalf of Golden Chemicals Company through Bidar Janata Transport, Ranigunj. He was examined on 12.06.2004, Ex.P.256 is the statement given by him in his own handwriting and he handed over Exs.P.257 to 272 – L.R. receipts of Bidar Janata Transport with his attestation. When photograph of A.3 was shown to him, he identified him and also he signed on the said photograph.

¶49

P.W.27 – Prashant Kumar deposed that he was looking after the business of his wife Renuka, which is carried under the name and style of Golden Chemical Agencies. He also stated that P.W.26 worked under him as a commission agent. He knew A.3 since the year 1993. Ex.P.274 is the statement of P.W.27 given on 12.06.2004.

¶50

P.W.31 – Siva Rama Krishna Rao deposed that he is the proprietor of Chemicals & Chemicals and doing chemical business. Further, he knew A.3 and he is having business contacts with A.3 from the year 2004. A.3 purchased Methyl Amine, Hydro Chloride, Nitro Ethane, Diethyl Ether and other items from him. The witness produced rough books relating to the transaction before the officials. Ex.P.282 is the statement given by the witness to DRI officials. When the officials shown photograph of A.3, the witness identified him. Exs.P.287 to 289 are the books handed over to DRI officials regarding the material transacted with A.3.

¶51

P.W.47 – Srinivas, who worked as Shift in-charge in LLDPL during the year 2004, deposed that A.4 is the Managing Director, A.6 is

¶52

Managing Director and A.3 was the General Manager of LLDPL. A.3 was looking after the day-to-day managements of LLDPL. They involved in manufacture of Cellulose, Avis as job work to Vivimed Labs, Jeedimetla, and Techno Trade Corporation of Bidar. A.2 was supervising the entire work. He further deposed that he also knew P.W.5, who occasionally used to visit the Company. His evidence further reveals that P.W.5 is also having a godown near Canteen of Kolhar Industrial Area. Further, on 05.06.2004, DRI people raided the premises when he was present at the premises and DRI people seized the premises and also some material from the lab. On the same evening, A.3 instructed him that 10 drums of Ortho Toluidine and 30 drums of Acetic Anhydride were kept in the godown of P.W.5 and directed him to go personally to P.W.5 and inform to throw away the contents of the premises. Accordingly, he met P.W.5 and informed the same to him. As per the request of P.W.5, he brought three helpers and threw all the drums along with contents in an abandoned well located in the said premises and put some stones and mud on the said premises. The witness further deposed that he was summoned on 28.04.2004 by DRI officials and he gave statement in his own handwriting and signature, which is marked as Ex.P.408. The witness also identified the photograph of A.7, who accompanied DCM van, and his signature on the photograph of A.7 is marked as Ex.P.409.

¶53

P.W.50 – T.Naga Srinivas Rao, who was doing lubricants business, deposed that one TVSS Prasad, who is no more, is his elder brother and he was Director in LLDPL. His another brother’s name is T.Venkateswar Rao. He deposed that after he received notice from DRI officials, he came to know that he was also one of the Directors in LLDPL. He identified A.4 and A.6 present in the Court hall. He never looked after the day to day affairs of LLDPL and A.4 was looking after the same as Managing Director. His statement given to DRI officials in his own hand writing is marked as Ex.P.432.

¶54

P.W.51 – T.Venkateswar Rao, who is the elder brother of

¶55

P.W.50, deposed that TVSS Prasad, who is no more, was working as Director in LLDPL. He further deposed that he has no connection with the said Company, but he was admitted as Director of LLDPL in the year 2004. A.4 is the Managing Director of the Company and A.6 is another Director. The witness also stated that he was called by DRI officials in June, 2004, and he gave his statement under Ex.P.232 and put his signature in it.

¶56

P.W.52 – Jagan Mohan Prasad, brother of A.4, deposed that he is an agriculturist and A.4 was doing chemical business and subsequently A.4 started LLDPL and P.W.52 gave Rs.2 lakhs as investment to A.4 and he was informed as Director of the Company. He once visited Bidar and signed on some papers. A.6 is brother-inlaw of A.4 and A.4 was looking after the affairs of LLDPL. On notice, he gave statement under Ex.P.434 and signed in it.

¶57

P.W.53, who is the Chemical Examiner in Customs Laboratory at Chennai, deposed that on 08.06.2004 he received four sealed covers with two seals on each cover along with four test memos under Exs.P.150 to P.153, on which he put his initials. According to him, all the seals were intact. When he opened Ex.P.150, he found 36 sealed covers with three seals of DRI, Hyderabad, having marks from M.P.1A to M.P.36A and the same were registered by his Lab on the same day as Lab Nos.571 to 606. On opening each cover, they were found to have contained off white coloured powder in polythene cover, each sample was weighed with Mettler balance along with polythene cover and each sample was analysed as per recommended methods for testing narcotic drugs and psychotropic substance given in manual for use by National Narcotic Laboratories. Solubility test, color test, Thin Layer Chromatography analysis were conducted and test report was given as follows:

¶58

1. Lab No.571 to 604/8.6.2004, TM.No.1/200-4/FL. Each of the thirty four samples is in the form of offwhite powder. Each answers tests for the presence of Methaqualone and each is covered under N.D.P.S.Act,

¶59

1985.

¶60

2. Lab No.605 to 606/8.6.04, TM.No.1/2004/FL.

¶61

Each of the two samples is in the form of off-white powder. Each of the two samples does not answer tests for presence of Methaqualone and not covered under N.D.P.S. Act, 1985.

¶62

The witness further deposed that other three sealed paper covers with markings 2/2004/FL, 3/2004/FL and 4/2004/FL, on opening were found to contain another sealed paper cover in each with 3 seals of DRI on each intact and tallying with the facsimile given in the Test Memo and had markings MDMA, GA, MDMA, YA, MDMA, BA, respectively along with one copy of Test Memo. The samples were registered here under Lab No.607, 608 and 609 respectively.

¶63

Each on opening was found to contain Tablets in polytehene cover. Samples were weighed along with polythene cover and tested for the presence of MDMA (Methyllene dioxy methamphetamine) using standard sample. The test report is given below:

¶64

1. Lab No.607/8.6.2004, TM.No.2/2004/FL

¶65

Sample is in the form of green coloured tablets. It answers tests for the presence of Methylene dioxy methamphetamine (M.D.M.A) and is covered under N.D.P.S. Act, 1985.

¶66

2. Lab No.608/8.6.04, TM No.3/2004/FL.

¶67

Sample is in the form of pale yellow tablets. It answers tests for the presence of Methylene dioxy methamphetamine (M.D.M.A.) and is covered under N.D.P.S. Act, 1985.

¶68

3. Lab No.609/8.6.04 TM No.4/2004/FL

¶69

Sample is in the form of dark green coloured tablets. It answers tests for the presence of Methylene dioxy methamphetamine (M.D.M.A.) and is covered under N.D.P.S. Act, 1985.

¶70

It is his further evidence that he gave a table in his report indicating quantity of sample consumed and quantity of remnant return from each item. Remnant samples were sealed in the original cover

¶71

with the seal of office of Chemical Examiner, Customs House, Chennai-I. Along with his report, the remnants were returned to Senior Intelligence Officer, Directorate of Revenue Intelligence, Hyderabad on 25.11.2004.

¶72

P.W.54 – K.C.Pillai, Chemical Examiner in Custom House Laboratory, Chennai, deposed that on 08.06.2004 he received 8 sealed packets from DRI along with letter. He compared the seals on 8 packets and found intact. His evidence is that on opening those 8 packets, he found one sealed sample packet and another copy of test memo in each of them. On each of those inside sealed packets, test memo, number, description, sample number, place of seizure, etc. were noted. When the inside sample paper packets were opened, there was sample in polythene cover in each of them. Each of the samples in polythene cover was weighed in Mettles balance and he noted their weights in lab register. He analyzed those samples as per recommended methods for testing Narcotic Drugs and Psychotropic substances given in the Manual for use in National Narcotic Laboratories. He conducted solubility test, colour test, thin layer chromatography analysis on each of 8 samples. He narrated the test report as follows:

¶73

1. Lab No.610/8.6.04 TM.No.5/2004/FL Lab No.615/8.6.04 TM.No.10/2004/FL Lab No.616/8.6.04 TM.No.11/2004/FL Lab No.617/8.6.04 TM.No.12/2004/FL

¶74

Each of the four samples is in the form of coloured tablets. Each answers tests for the presence of MDMA and is covered under NDPS Act, 1985

¶75

2. Lab No.611/8.6.04 TM No.6/2004/FL

¶76

The sample is in the form of coloured tablets and powder. The sample answers the tests for the presence of MDMA and is covered under Narcotic Drugs and Psychotropic Substances Act, 1985.

¶77

3. Lab No.642/8.6.04, TM No.7/2004/FL Lab No.613/8.6.04, TM No.8/2004/FL

¶78

Each of the two samples is in the form of tablets and powder. Each sample answers the tests for the presence of Methaqualone and is covered under NDPS Act, 1985.

¶79

4. Lab No.614/8.6.04, TM No.9/2004/FL

¶80

The sample is in the form of coloured tablets. The sample is composed of organic and inorganic compounds. The exact identity of the sample could not be ascertained.

¶81

He also deposed that have gave a table in his report incorporating details of weight of each sample received along with cover and weight of each remnant returned along with cover duly packed and sealed in the same original covers to the Senior Intelligence Officer, DRI, Hyderabad, on 25.11.2004.

¶82

P.W.-55 – Narayana Kumar, Chemical Examiner in Central Revenues at Laboratory at Custom House, Chennai, deposed that on 08.06.2004 he received four covers with two seals of DRI along with copies of four test memos. The seals were intact. On opening those four sealed covers, he found one sealed cover each in three cases and found 7 sealed covers in 4^th case. Each cover was containing details regarding test memo number, description, sample number, place of seizure, etc. On opening the sealed covers, he found eight samples in plastic packets and two samples in glass bottles. They were weighed along with containers and weight was noticed. He conducted analysis of each of those samples by conventional methods and recommended methods for testing Narcotic Drugs and Psychotropic Substances given in the Manual for use by National Narcotic Laboratories. He conducted solubility test, colour test, thin layer chromatography analysis. He narrated the test report as follows:

¶83

1. Lab No.618/8.6.04 TM.No.1/2004/LLDPL

¶84

Each of the four samples is in the form of yellowish brown coloured lumps and coarse powder composed of complex organic compound.

¶85

Wt. of the sample received along with plastic cover = 19.2 grams.

¶86

Wt. Of the sample returned along with plastic cover = 18.5 grams.

¶87

2. Lab No.619/8.6.04 TM No.2/2004/LLDPL

¶88

The sample is in the form of dark brown coloured liquid. It is a solution of complex organic compounds in organic solvents.

¶89

Wt. of the sample received along with glass bottle = 121.7 grams.

¶90

Wt. of the sample returned along with glass bottle = 117.3 grams.

¶91

3. Lab No.620/8.6.04, TM No.3/2004/LLDPL

¶92

The sample is in the form of browning yellow coloured lilquid. It is a solution of complex organic compounds in organic solvents.

¶93

Wt. of the sample received along with glass bottle = 136.2 grams.

¶94

Wt. Of the sample returned along with glass bottle = 130.5 grams.

¶95

4. Lab No.621 to 627/8.6.04, TM No.4/2004/FL

¶96

Each of the seven samples is in the form of gray coloured irregular lumps and powder. Each answers tests for the presence of Methaqualone and is covered under Narcotic Drugs and Psychotropic Substances Act, 1985.

¶97

It is the further evidence of P.W.55 that he incorporated identification number, lab number, weight of sample with container received and weight of remnant along with container returned, etc. in his report under Ex.P.437, and handed over it to Intelligence Officer, DRI, Hyderabad, on 25.11.2004

¶98

PW-56 – Ameer Raza Khan, who is working as Assistant Chemical Examiner, Central Revenues Laboratory, Custom House, deposed that on 08.06.2004 he was allotted 10 samples by the then Chemical Examiner, which were brought by Intelligence Officer, DRI, Hyderabad. His evidence is that he received 7 test memos. Out of total 7 packets, one packet was containing 4 samples. Each packet was containing one sample each, totaling 10 samples and the seals on the samples were intact. He opened the sample packets and the samples were in plastic pouches in respect of 5 samples and the samples were in glass bottles in respect of 5 samples. He registered the samples as Lab Nos.628 to 637 dated 8.6.2004. He weighed the samples along with containers with electronic Mettler balance. He analyzed all the 10 samples using standard methods and procedures

¶99

of chemical analysis and he gave the result in his report. The witness further deposed that he packed the remnants in the same covers and affixed seal of chemical examiner and handed over to Senior Intelligence Officer, DRI, Hyderabad, on 25.11.2004.

¶100

P.W.57 – Assistant Chemical Examiner, Custom House, Chennai, deposed that on 08.06.2004 he received 9 sealed covers along with 9 test memos from Intelligence Officer, DRI, Hyderabad. Each of the 9 covers was having two seals of DRI, Hyderabad. All the seals were intact. It is his further evidence that on opening those 9 sealed packets, he found another sealed envelop along with corresponding test memo in each of them, each envelop was having 6 seals of DRI, on opening those sealed envelops he found samples in powder in five envelops and those samples were in plastic pouches and he also found four samples in liquid form in bottles in four envelops. He weighed all the samples by using Mettlor balance. The powder was weighed with plastic pouches whereas liquid samples were weighed without container. He analyzed all the nine samples as per the methods given in their technical books and gave report. He also deposed that the remnant samples were sealed in their original envelops and with seal of Chemical Examiner and were handed over to Senior Intelligence Officer, DRI, Hyderabad, on 25.11.2004.

¶101

P.W.58 – Yanadi Reddy, the then Senior Intelligence Officer, DRI, Hyderabad, deposed that on 05.06.2004 he issued summons to A.5 to appear before him for examination, on the same day, A.5 appeared before him and he recorded his statement, on 06.06.2004 he arrested A.5 and on 07.06.2004 he submitted report to the Deputy Director, DRI, Hyderabad, as per Section 57 of the NDPS Act.

¶102

P.W.59 – M.V.Sreeram, Senior Intelligence Officer, DRI, Hyderabad, deposed that on 06.06.2004 he recorded the statement of A.3 under Ex.P.445, which is in the own handwriting of A.3. Prior to that, the witness issued summons under Ex.P.446 to A.3. He arrested A.3 on 06.06.2004 and on 07.06.2004 he submitted Ex.P.447 report to the Deputy Director as required under Section 57 of the NDPS Act.

¶103

According to him, on 14.06.2004 he recorded the statement of P.W.31 under Ex.P.286 who identified the photograph of A.3 and collected some documentary evidence from P.W.31.

¶104

P.W.62 – AVS Mallikarjuna Rao, Superintendent of Central Excise, deposed that he issued summons to A.6 on 05.06.2004 under Ex.P.457 and on 06.05.2004 he got recorded the statement of A.6 under Ex.P.458 in own handwriting of A.6. Further, he arrested A.6 on the same day at about 1445 hours. On 07.06.2004 he sent report under Section 57 of the Act under Ex.P.459 to the Deputy Director, and also forwarded the samples to the Deputy Chief Chemist, Customs House, Chennai, along with Ex.P.55 letter. He recorded the statement of P.W.26 who identified A.3 in photographs. He collected transport bills and also he participated in part of the investigation. On 23.08.2004 he forwarded the samples to Deputy Chief Chemist, Customs House, Chennai, along with Ex.P.470, on 25.08.2004 he recorded the statement of P.W.47, on 28.07.2005 he deposited the case property before the concerned Court after bringing the same from Customs Godown. On 29.07.2005, he deposited samples, remnants and cash of Rs.6 lakhs in the Court and he filed the complaint in this case. He deposed to have received opinion from the Government Examiner regarding questioned documents and the value of the contraband seized in this case is Rs.120 crores in the international market.

¶105

P.W.63 - Smt.Saraswathi Chakravarthi, Chemical Examiner in Central Revenue Laboratory, Custom House, Chennai, deposed that when she was working as Assistant Chemical Examiner, on 08.06.2004, she was allotted with five samples brought by the Intelligence Officer, DRI, Hyderabad. It is her evidence that the seals were intact, she analysed the samples and gave report under Ex.P.482. She further deposed that likewise on 24.08.2004 she also received two samples and her report is marked as Ex.P.483.

¶106

P.W.64 – Surya Prasad, Deputy Government Examiner for

¶107

Questioned documents, deposed that on 03.08.2004 on receipt of a letter from Deputy Director, DRI, for comparison of questioned documents, he along with one S.C.Lohia examined the same independently and both of them gave a common opinion dated 23.08.2004 to the following effect:

¶108

2. The enclosed writings stamped and marked S1 to S6 also wrote the enclosed writings similarly stamped and marked Q11 to Q20.

¶109

3. The enclosed writings stamped and marked S7 to S18 also wrote the enclosed writings similarly stamped and marked Q1 to Q4, Q5/1, Q8, Q9, Q21, Q21/1, Q23, Q24, Q28 and Q33 to Q45.

¶110

4. The enclosed writings stamped and marked S19 to S24 also wrote the red enclosed writings similarly stamped and marked Q6, Q7 and Q29 to Q32.

¶111

5. The enclosed writings stamped and marked S25 to S38 also wrote the enclosed writings similarly stamped and marked Q22 and Q46 to Q51.

¶112

6. The enclosed writings stamped and marked S39 to S521 also wrote the enclosed writings similarly stamped and marked Q25 to Q27.

¶113

7. It has not been possible to fix the authorship of the writings marked Q5, Q10, Q52 and Q52/1 in comparison with any of the specimen writings marked S1 to S6, S7 to S18, S19 to S24, S25 to S38 and S39 to S62.

¶114

P.W.67 – Aroop Das, Senior Intelligence Officer, deposed that on 04.06.2004, gist of intelligence with covering letter was sent by him to the Deputy Director, DRI, as per Exs.P.488 and 489. On 05.06.2004 he issued search authorizations in favour of PWs 1, 7, 10, 12, 14 and 16. On the same day, he issued summons to one Akram Kareem Shaik and recorded his statement. He received reports under Section 57 of the NDPS Act from all the officers. On the same day at 1830 hours he summoned A.1 and on the same day he received a letter from A.1 to the effect that he would appear on the following day. Further, on 06.06.2004 he recorded the statement of A.1 in his own handwriting and signature and the witness also signed on it. On the same day, he arrested A.1. On 07.06.2004 he submitted report under Section 57 of the NDPS Act to the Deputy Director. He also deposed that the six

¶115

officers authorized by him submitted their reports under Section 57 of the NDPS Act to him and in turn he submitted the same to the Deputy Director along with panchanamas, samples with test memos, documents and he retained the property in his custody with guard. On 07.06.2004, he remanded A.1 to A.3, A.5 to A.7 to Court.

¶116

After appreciating the above said evidence coupled with other oral and documentary evidence available on record, the learned trial Judge rendered the impugned judgment convicting A.1, A.3 to A.6 and acquitting A.7 to A.10 as stated above and the same is under challenge in the present appeals.

¶117

Heard Sri B.Adinarayana Rao, learned Standing counsel for NCTE for DRI, Mr.Syam Kesani, learned Senior counsel, appearing for A.1, Sri V.Pattabhi, learned counsel for A.3, Sri J.V.Suryanarayana, learned counsel for A.4 & A.6 and Sri C.Padmanabha Reddy, learned Senior counsel for A.5.

¶118

Learned counsel for A.1 argued that the investigation agency has not complied with the provisions of Section 42 of NDPS Act, charges were not framed properly by the trial Court, mediators did not support the prosecution case and they were also not treated as hostile witnesses, recovery from A.1 is unbelievable, prosecution case is highly improbable in view of the manner in which the evidence was adduced by the prosecution witnesses and no connecting material is available to attract the charge under Section 29 of NDPS Act.

¶119

Learned counsel for A.3 submitted that no evidence is available to prove that A.3 is the General Manager of LLDPL, nothing is recovered from his possession, even though huge quantity is recovered from the premises and field kit test proved positive, the appellant-A.3 was not arrested, which goes to show that he was not present at the place of recovery and the entire investigation is a table top investigation. He also argued on non-compliance of Section 42 of NDPS Act. He further argued that there are many discrepancies in the evidence of prosecution witnesses and some of the materials used in the course of investigation were not produced before the Court.

¶120

Learned counsel for A.4 and A.6 submitted that A.4 is not present during the search and he was surrendered only on 08.07.2004, nothing is recovered from his possession, the statement under Section 67 of NDPS Act is unbelievable. He also argued that nothing is recovered from the possession of A.6 and no evidence is available to prove conspiracy.

¶121

Learned counsel for A.5 adopted the arguments of learned counsel for A.3, A.4 and A.6.

¶122

The learned counsel mainly based their arguments on noncompliance of Section 42 of the NDPS Act. The Prosecution relied on Ex.P.488, which it claims to be the compliance of Section 42 of NDPS Act. Defence counsel relied on number of judgments in this regard. All those judgments were taken into consideration by the Constitution Bench of Apex Court in its decision in Kurnial Singh v State of Haryana^[1] and the said decision has been relied by both sides i.e. by the Prosecution as well as the appellants herein. Hence, without referring to other judgments, this Court intends to place reliance in Kurnial Singh case in deciding the issues in the present appeals. The concluding paragraph of the said decision runs as follows: 35. In conclusion, what is to be noticed is that Abdul [2] Rashi d did not require literal compliance with the requirements of Sections 42 (1) and 42 (2) nor did Sajan Abraham^[3] hold that the requirements of Sections 42 (1) and 42 (2) need not be fulfilled at all. The effect of the two decisions was as follows:

¶123

(a) The officer on receiving the information [of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42 (1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing

¶124

the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42 (1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.

¶125

(c) In other words, the compliance with the requirements of Sections 42 (1) and 42 (2) in regard to writing down the information received and sending a copy thereof to the superiod officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by act 9 of 2001.”

¶126

In the present case, the main contention raised by the defence counsel is that the evidence of PWs 1, 7 and 67 would go to show that they were receiving information over a period of months, but the same was not recorded and the information recorded by P.W.67 under the caption of ‘gist of intelligence’ cannot be called as sufficient

¶127

compliance of Section 42 of the NDPS Act. This Court perused the evidence and also carefully gone through Exs.P.488 and 489. Ex.P.488 speaks about the intelligence report and Ex.P.489 compliance of sub-section (2) thereof i.e. forwarding the same to the superior officer. Further, it is contended that the same officer who received the information should record it, but it should not be by another officer on the basis of information given by his subordinate. A perusal of evidence of the said witnesses categorically goes to show that they were receiving information regarding the illegal activities continuously and P.W.67 on reliable information recorded the ‘gist of the intelligence’ under Ex.P.488. Further, the defence counsel by taking advantage of the words ‘over a period of time’ used in the first paragraph of Ex.P.488 argued that intelligence is being gathered since past but the same was not reduced into writing as required under the provisions of NDPS Act, for which, the learned Public Prosecutor submitted that concerned officer has to verify whether the information so received was authentic or arising out of some suspicion. On perusal of Ex.P.488, even though it is recorded by P.W.67 as ‘gist of intelligence’ just one day prior to search conducted by his subordinates, the same contains the information about the place where the illegal activities carried out and the persons who involved therein. The intention of Legislature in enacting the said provision of law is to protect the innocent individual from being prosecuted with false implications.

¶128

The learned Public Prosecutor while placing reliance on Kurnial Singh case submitted that the information recorded under Section 42 of the NDPS Act is always to be an authentic information received by the officers. It is always left open to the person, who received information, to verify its veracity and then to record, and all information received by the officers need not be recorded in writing.

¶129

In the present case, the statement recorded i.e. ‘gist of intelligence’ under Ex.P.488 clearly indicates that incriminating information was received by the officer. This Court is also of the view

¶130

that the perusal of Ex.P488 clearly indicates compliance of Section 42 (1) of NDPS Act and more particularly regarding valid information of manufacturing, possession and involvement of persons and place of occurrence. In the light of the abovereferred decision of Apex Court, more particularly, the concluding paragraph thereof, the compliance of said provision should be decided by the Court basing on the facts and circumstances of each case. Subsequent recovery of contraband, which is huge in nature, in the places mentioned in Ex.P.488 also establishes the fact that the said information is recorded properly on receipt of the same and Ex.P.489 is the compliance of condition of forwarding the intelligence report within 72 hours as required under sub-section (2) thereof. Thus, the contention of non-compliance of Section 42 of the NDPS Act is not in merit acceptance. Hence, this Court rejects the said contention.

¶131

It is further contended that regarding search of the persons concerned, there is non-compliance of provision of the NDPS Act. In the present case, the persons searched were properly informed their right to be examined before a Magistrate or Gazzetted officer and after informing them duly, search was conducted in the presence of a Gazzetted Officer. Hence, the investigation agency is also found to have complied with the provisions of NDPS Act in this regard also.

¶132

As far as other mandatory provisions of the NDPS Act are concerned, the defence counsel have not vehemently contended noncompliance of any such other provisions.

¶133

Since, the trial Court rejected the statements of the accused recorded under Section 67 of the NDPS Act, no arguments were placed by the defence counsel in that regard and the same was also not agitated by the Prosecution before this Court. Hence, this Court is also not inclined to probe into that aspect.

¶134

This Court intends to analyze the evidence available against the appellants individually since they are placed in different footing.

¶135

As far as A.1 is concerned, the learned counsel mainly

¶136

contended that it is the case of the prosecution that 12 grams of contraband was seized from his possession and test was also conducted in the said premises and samples were also taken from the said recovery, but interestingly, only 11.184 grams of narcotic drugs were placed before the Court as recovery. If it is the case of the Prosecution that 2 grams in each colour tablet is taken as sample, there is no possibility of production of 11.184 grams of narcotic drugs.

¶137

During the arguments of the Prosecution, it is brought to the notice of this Court that in his evidence, P.W.7 categorically deposed before the Court as follows:

¶138

“The weights of tablets and powders and floor sweepings seized are mentioned in Annexures-II, III and V(B) to the panchanama. These weights are after drawal of samples”.

¶139

This Court perused Annexure-V(B) wherein it is clearly stated that the goods were send to the Court after drawal of samples weighing about 11.183 grams. It is marked as M.O.114. Further, there is no cross-examination of P.W.7 by accused in this regard. Hence, the said contention argued on behalf of A.1 also cannot be accepted.

¶140

The further contention is that the charges were not properly framed against the appellant-A.1. It is true that on perusal of the charges, the trial Court has not specifically framed any charge regarding possession of narcotic drugs by A.1 in his person. But, the provisions of law incorporated in the charge. Whether non- framing of charge in a specific manner would affect the prosecution case has to be decided by this Court now. In this regard, this Court is of the view that the said fact has to be decided on the basis of evidence adduced before the Court and also as to the prejudice caused to A.1 due to nonframing of charge in a specific manner. In the present case, it is evident from the evidence of the prosecution witnesses that even though such a specific charge is not framed, a detailed crossexamination was done by the accused on that aspect. Hence, at this stage, A.1 cannot contend that he was not in a position to understand

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the accusation leveled against him and thus it caused prejudice to him. Hence, this point is also answered against A.1.

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The next contention of A.1 counsel is that the charge of conspiracy under Section 29 of the NDPS Act is not proved by the prosecution effectively. Section 290 of the NDPS Act not only speaks about conspiracy and also of abetment of commission of crime. The evidence relied on by the Prosecution in this regard is recovery of cash of Rs.6 lakhs from hotel room where A.1 stayed, his possession of narcotic drugs and some other documents recovered from him showing his contacts with A.3 and other accused in this case. A.1, who is from Mumbai, stayed at room No.311, HAI. But at the time of search at said premises i.e. at 8.30 a.m. on 05.06.2004, he was not present at his hotel room but was present at FL where also a simultaneous search was conducted by other DRI officials and A.1 was found in possession of some contraband. In such circumstances, it is for A.1 to explain as to what necessitated him to be present at FL along with A.2 and A.5, which he has not either at the time of trial or examination under Section 313 Cr.P.C. Hence, this Court is of the view that the Prosecution is also able to prove the charge of conspiracy against A.1.

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Further it is argued by the counsel for A.1 regarding seizure and procedures followed by the officials concerned on the basis of the evidence adduced by PWs 1, 7, 67 and 62. The counsel mainly relied on the discrepancies in the evidence adduced by the said witnesses before the trial Court. This Court perused the relevant records in connection with the recovery, deposit of goods in a godown and forwarding samples for chemical examination. It is true that some discrepancies are there in the evidence of the persons, who conducted search, and also the evidence of PWs 62 and 67, but the fact remains that the oral evidence was adduced by the witnesses after lapse of years whereas the contemporaneous records maintained by the investigation agency produced before the concerned Court speak that the investigation agency complied with the provisions intact and the

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evidence of the chemical examiners also establishes the fact that the samples were received intact with seals. When the documentary evidence that was prepared at the time of investigation discloses strict compliance of the provisions, the discrepancies in the oral evidence adduced after lapse of years need not be given much credence and the said discrepancies also will not affect the root of the prosecution case.

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The further contention of the learned counsel for A.1 is that the DRI officials after recovery of the contraband conducted Press Conference wherein they showed some of the material seized during the course of search which falsifies the stand taken by the Prosecution that the samples of the recovered materials were deposited as per the provisions of the Act. The learned Public Prosecutor rebuts the same and submits that the evidence adduced by the defence witnesses is only to the extent that something were shown in the Media, but the person who conducted such Press Conference is not examined by the defence and the witnesses so examined also deposed before the Court that they were not aware of the said Press Conference and nobody knew what is the material shown in the Press Conference. Hence, the same cannot be taken into consideration.

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This Court also perused the evidence. It is true that a Press Conference was arranged by some of the officials and some materials were shown to the Media. But, there is nothing on record to establish the fact as to what was shown to the Media is the property seized during the search. However, it is unfortunate to note that in these serious nature of cases, the officials without knowing the complicity, conduct Press Conference, which always cause prejudice to the prosecution case. Hence, this point is also answered against A.1.

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In view of the above discussion, it is held that the Prosecution has proved its case against A.1.

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As far as case against A.3, who is the General Manager of LLDPL, is concerned, during the search A.3 and A.6 were present at

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the premises of LLDPL. The main contention raised by A.3 is that search would not have conducted in the manner in which it is projected by the prosecution and it is highly impossible to conduct such a search and recovery of huge materials within such a short time. Further, it is also argued that from Hyderabad to Bidar, all along the way, witnesses were said to have accompanied the officials and returned to Hyderabad, which is also unbelievable. Further, the investigation agency, even after knowing that the substances recovered from the premises are narcotic drugs has not arrested the accused and asked them to appear before the officers on issuance of summons, which goes to show that A.3 and A.6 were not present at the place and time of seizure.

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But, before the trial Court, while attacking regarding statements under Section 67 of NDPS Act, it was argued by the defence counsel that A.3 was taken into custody and he was forced to give a statement, hence, the statement recorded under Section 67 of the NDPS Act cannot be considered. The trial Court also decided the issue in favour of the appellant-A.3 on the ground that the said statement was not voluntary in nature since the trial Court felt that A.3 was taken into custody by the officers prior to recording of statement. When such an argument was forwarded by the appellant’s counsel before the trial Court, contrary cannot be argued before this Court. Further, the leaned Public Prosecutor argued that it is always the prerogative of the investigation agency to arrest a person and since the prosecution wants to record the statement of the accused under Section 67 of the NDPS act after issuance of summons, they could not be arrested. Further, the investigation agency, after recovery and analysis of the materials recovered with field kit, allowed the accused to appear before the concerned officer on issuance of summons, which indicates that the investigation agency wants to give an opportunity to the accused to explain their case. Hence, the failure to arrest the accused at the time and place of seizure is not a ground to reject the case of the Prosecution.

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The further contention is that without placing any valid documents, A.3 was shown as General Manager of LLDPL by the Prosecution. When once the Prosecution failed to establish that A.3 is the General Manager of LLDPL, he cannot be held responsible for the contraband seized from LLDPL. In order to establish that A.3 is the General Manager of LLDPL, the Prosecution relied on the evidence of P.W.47. PW.47, who was working under A.3, deposed before the Court that A.3 is the General Manager of LLDPL. Further, when P.W.1 intended to search the premises of LLDPL, A.3 introduced himself as General Manager of LLDPL and he also signed in the panchanamas prepared by the officials. P.W.2 who is the mediator to said panchanamas also established the presence of A.3 at the place of seizure.

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It is further contended by the counsel for A.3 that P.W.5 was introduced with an intention to implicate A.3 in the crime and the evidence of P.W.5 would indicate that he knowing fully well that the materials given by A.3 are of narcotic substances, kept the same in his godown, but whereas he was shown as a witness only with an intent to implicate A.3 in the present offence and the Prosecution wants to fish out P.W.5 from the present case.

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This Court perused the evidence of P.W.5, which indicates that A.3 is the person who is in-charge of manufacture activities in LLDPL and P.W.5 worked under him for sometime. Further, it is the evidence of P.W.5 that he was informed by P.W.47 to destroy chemicals given by A.3. The evidence of P.W.5 and 47 clearly indicates involvement of A.3 in this offence. While rebutting the argument of the counsel for A.3 that the Prosecution fished out P.W.5 by implicating A.3, the learned Prosecutor submitted that the investigation agency has never shown any favour to P.W.5, if it is the intention of the investigation agency to favour P.W.5, there is no necessity for them to conduct a search at the godown of P.W.5 after a lapse of 2 months from the date of search in LLDPL. Learned Public Prosecutor further submitted that the

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investigation agency never intended to implicate falsely anyone those who are not involved in this case. In this context, the learned Public Prosecutor brought to the notice of this Court that even though the search was conducted by the investigation agency at the residence of A.3 where incriminating materials were seized, the investigation agency never intended to implicate his son who was only present at the residence of A.3 at the time of search. Further, P.W.47 clearly deposed in his evidence that when he went to P.W.5 and informed him that A.3 asked him (P.W.5) to throw away the drums, P.W.5 informed him that he does not know the contents of those drums. Hence, the contention that the Prosecution tried to fish out P.W.5 is proved to be negative.

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Further, the entire substances recovered from the premises proved to be narcotic drugs by the evidence of PWs 54, 56, 57 and 62, who conducted chemical examination. Further, the evidence of PWs 27 and 31 also supported the case of the prosecution. Thus, this Court is also of the considered view that the Prosecution proved its case against A.3 also.

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As far as case against A.4 is concerned, he is the Managing Director of LLDPL where A.3 was working as General Manager. Even though he was not arrested by the investigation agency at the time of search and seizure, he surrendered before the officials subsequently i.e. on 08.07.2004. A.4 is the Managing Director of LLDPL where huge quantity of narcotic substances was recovered. The fact that he was the Managing Director of LLDPL is proved by the Prosecution through the evidence of PWs 47, 50, 51 and 52. P.W.47 who worked as shift in-charge at LLDPL deposed that A.4 was the Managing Director of LLDPL. P.W.50 who is the brother of one of Directors of LLDPL also identified A.4 as the Managing Director and he also deposed that A.4 was looking after the day-to-day affairs of LLDPL. P.W.51 who is the brother of P.W.50 also deposed that A.4 was the Managing Director of LLDPL and A.6 was another Director of the Company. P.W.52, who is the brother of A.4 and also invested a sum of Rs.2 lakhs in LLDPL

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when A.4 started LLDPL, also deposed that A.4 was looking after the affairs of LLDPL. The above said evidence of PWs 47, 50 to 52 clearly establishes the fact that A.4 is the Managing Director of LLDPL and used to lookafter the day-to-day affairs of LLDPL where manufacturing process is conducted. Hence, this Court is of the considered view that the Prosecution is also successful in proving the case against A.4.

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Coming to case against A.6, he is alleged to be the Director of LLDPL and he was also present along with A.3 during the time of search and seizure at LLDPL and signed in the documents like panchanamas, etc. Further, the evidence adduced by PWs 47, 51 and 52 is to the effect that A.6 is the Director of LLDPL and he was also present at the time of search at LLDPL. He being the Director of LLDPL where huge quantity of contraband was seized, it is for him to prove the contrary to the case of the Prosecution. Some of the Directors of the Company were not added as accused by the Prosecution, but A.4 and A.6 are only arrayed as accused, which clearly establishes the fact that the investigation agency has taken proper efforts to find out the involvement of the persons in the affairs of the Company. Even though evidence is available on record to show that some other directors are also available in the Company, the Prosecution, on the basis of the evidence collected, only charged the persons involved in the crime. Hence, the Prosecution has rightly included A.6 in the present crime and also proved the allegations against him.

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As far as case against A.5 is concerned, he is no more, but the appellant was allowed to be continued through his LRs.

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A.5 is also present during the time of search and seizure and material seized at FL. When P.W.7 along with his team went to the premises of FL, A.5 along with A.1 and A.2 was present at FL and he introduced himself as Managing Partner of FL and he also signed in relevant panchanamas in that capacity. Exs.P.489-Gist of Intelligence and Ex.P.494-Letter from District Registrar, Ranga Reddy District,

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produced by the Prosecution clearly establish that A.5 was one of the partner of FL, which is formulation unit for tableting. Hence, the prosecution could able to connect A.5 with the crime successfully by adducing proper evidence in that regard.

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It is the further contention of the defence counsel that the seized remnants were not properly analysed by the chemical analysts, statutory chemical description was not given and quantitative analysis was not done. As rightly pointed out by the learned Public Prosecutor, if it is the grievance of the appellants that chemical examination was not properly done, they would have examined an independent Expert to substantiate that the tests conducted are not sufficient to decide whether the chemicals are narcotic substances or not. Even the crossexamination of P.W.54 - Chemical Analyst by A.3, A.4 and A.6 before the trial Court discloses that he clearly denied the suggestion that he was not able to identify any of the samples as narcotic substances by the tests he conducted. Further, all the Chemical Examiners have deposed in their chief examination that they analyzed the samples as per the recommended methods for testing Narcotic Drugs and Psychotropic substances given in the Manual for use in Natinoal Narcotic Laboratories. Further, the appellants have not taken any steps to establish the fact that test was not conducted in proper manner. In the absence of any such exercise by the defence counsel, the Prosecution case cannot be ruled out. Hence, this contention also is not helpful to the appellants.

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Another contention raised by the defence counsel is that custody of second samples is not explained, for which the learned Public Prosecutor submitted that unlike other Acts, in NDPS Act second samples have no relevancy. He further submitted that even under Standing Order 1 of 88, duplicate samples can safely be kept under the custody of the investigating officer and only in case of loss or otherwise of original samples in transit, the duplicate samples should be utilized. In that view of the matter, this Court is also of the view that the contention raised by the defence on second samples need not be

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considered.

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This Court appraised the entire evidence adduced in the present case with the facts and circumstances of the case by taking into consideration the recovery of huge quantity of narcotic drugs and the searches that were conducted simultaneously in different States by the investigation agency. Hence, this Court is of the view that the discrepancies appearing in the evidence of some of the witnesses are not material and they do not affect the case of the prosecution and do not cause any prejudice to it.

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In view of the above discussion, this Court is of the considered view that the Prosecution is successful in proving its case against A.1, A.3 to A.6.

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As far as appeals preferred by the State challenging acquittal of A.7 to A.10 is concerned, the impugned judgment reveals substantial reasons adduced by the trial Court for acquitting A.7 to A.10. Further, the evidence adduced by the Prosecution witnesses is also not connecting those accused with the crime. In a case of grave nature, it is the duty of the Prosecution to connect the accused with the alleged offence by adducing some clinching evidence. Grave the offence, stricter should be the proof. In the absence of any connecting material to prove the involvement of A.7 to A.10, they cannot be held to have involved in the crime.

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Further, in an appeal against acquittal, the scope of this Court is very limited and if there is any perversity or illegality apparent on the face of the record, then only this Court can interfere with the finding of the lower Court. It is well settled that in an appeal against acquittal, the Appellate Court can interfere only when there is possibility of one view, which is pointing towards the guilt of the accused. When there is possibility of two views and one view, which is in favour of the accused, is taken into account and the accused are acquitted by the competent Court, there is no need to interfere with the order passed by the trial Court.

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Considering the above said proposition of law and having perused the record and the impugned judgment, this Court is of the view that there is no need to interfere with the order of acquittal passed by the learned trial Judge in respect of A.7 to A.10.

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In that view of the matter, all the appeals preferred by the accused and State are dismissed.

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As far as quantum of sentence is concerned, the learned trial Judge imposed the maximum punishment of 20 years against A.1, A.3 to A.6 apart from imposition of fine.

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This Court perused the reasons assigned by the learned trial Judge while imposing the maximum punishment on the appellants and also relevant provisions under NDPS Act.

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Section 32-B of NDPS Act narrates the circumstances to be considered for imposition of higher punishment, which runs as follows:

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32-B. Factors to be taken into account for imposing higher

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than the minimum punishment.- Where a minimum term of imprisonment or amount of fine is prescribed for any offence committed under this Act, the Court may, in addition to such factors as it may deem fit, take into account the following factors for imposing a punishment higher than the minimum term of imprisonment or amount of fine, namely:-

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(a) the use or threat of use of violence or arms by the offender;

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(b) the fact that the offender holds a public office and that he has taken advantage of that office in committing the offence;

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(c) the fact that the minors are affected by the offence or the minors are used for the commission of an offence; and

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(d) the fact that the offence is committed in an educational institution or social service facility or in their immediate vicinity of such institution or faculty or in other place to which school children and students resort for educational, sports and social acitivities;

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(e) the fact that the offender belongs to organized international or any other criminal group which is involved in the commission of the offence; and other criminal group which is involved in the commission of the offence; and

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(f) the fact that the offender is involved in other illegal

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activities facilitated by commission of the offence.

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Further, it is the duty of the trial Court to adduce sufficient and proper reasons while imposing higher punishment. In the present case, the trial Court has not given any substantial reasons for imposing higher punishment than the minimum punishment. Further the appellants so convicted will not come under any one of the categories mentioned in above referred provision. In view of the same, the enhanced punishment imposed by the trial Court is not in accordance with law. Considering the facts and circumstances of the case, this Court is of the view that the sentence of imprisonment imposed by the trial Court can be reduced from 20 years to 10 years and fine also can be reduced from Rs.2 lakhs to Rs.1 lakh.

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Accordingly, the impugned judgment holds good as far as acquittal of A.7 to A.10 and conviction imposed against A.1, A.3, A.4 and A.6 is concerned. As far as sentence of imprisonment imposed against A.1, A.3, A.4 and A.6 for the offence punishable under Sections 22, 25A and 29 of NDPS Act is concerned, the same is reduced from 20 years to 10 years under each count and fine amount is also reduced from Rs.2 lakhs to Rs.1 lakh under each count. Further, the sentence of imprisonment imposed on A.1 for the offence punishable under Section 27A of NDPS Act is also reduced from 20 years to 10 years and fine amount imposed for the said offence is also reduced from Rs.2 lakhs to Rs.1 lakh. In default of payment of fine amount, A.1, A.3, A.4 and A.6 shall undergo simple imprisonment for six months under each count. All the above said sentences shall run concurrently.

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Since A.5 is no more, the sentence of imprisonment imposed on him is abated. However, the fine amount imposed on A.5 by the trial Court for the offence punishable under Sections 22 and 29 of NDPS Act is reduced from Rs.2 lakhs to Rs.1 lakh under each count.

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The period of imprisonment already undergone by A.1, A.3, A.4 and A.6 is directed to be given set off under Section 428 Cr.P.C.

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The remaining portion of the impugned judgment shall stand

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unchanged.

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Subject to above modification in sentences, all the appeals

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shall stand dismissed.

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JUSTICE RAJA ELANGO