Bothilal v. The Intelligence Officer Narcotics Control Bureau

1. Criminal Appeal No.451 of 2011 has been preferred by accused no.3 and Criminal Appeal No.1185 of 2011 has been preferred by accused no.1. As per the case of the prosecution, PW­2 Nalini Ranjan, Intelligence Officer, Narcotics Control Criminal Appeal No.451 of 2011 2023 INSC 432 Bureau (for short, ‘NCB’), South Zonal Unit, Chennai received information on 16th May 2002. Based on the information, she along with her team and two independent witnesses namely Devendran and Prabhu conducted a raid at Room No.303, Hotel Suriya, Periamet, Chennai where accused no.4 – F. Anna Raj was staying. The officers of NCB found that apart from accused no.4, accused nos.[1] to 3 were also present in the room. The door of the room was opened by accused no.1. In the room, a bag containing narcotic substance was found which was seized. The narcotic substance found was 5.067 kilograms of heroin. The Trial Court convicted the accused no.1 (appellant in Criminal Appeal No.1185 of 2011) for the offences punishable under Section 8(c) read with Sections 21(c), 27A, 28 and Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘NDPS Act’). He was sentenced to undergo rigorous imprisonment for a period of 11 years and to pay a fine of Rs.[1] lakh. In default of payment of fine, he was sentenced to undergo rigorous imprisonment for six months. Accused no.3 (appellant in Criminal Appeal No.451 of 2011) was convicted for the offences punishable under Section 8(c) read with Sections 21(c) and 29 of the NDPS Act. The sentence is the same as that of accused no.1. In appeal, while confirming the conviction, the High Court of Judicature at Madras reduced the sentence of both of them to ten years. The default sentence was reduced to one month. The other two accused with whom we are not concerned, were convicted for different offences punishable under the NDPS Act.

SUBMISSIONS OF THE APPELLANTS CRIMINAL APPEAL NO. 451 OF 2011

2. Shri Sushil Kumar Jain, the learned senior counsel appearing for the appellant has made submissions in Criminal Appeal No.451 of 2011 preferred by accused no.3. At the outset, he pointed out that till he was released on bail, accused no.3 had undergone sentence for a period of eight years nine months and twelve days. He submitted that both the Courts have relied upon the confessional statement of the appellant recorded under Section 67 of the NDPS Act before the officers of the NCB who are invested with the powers under Section 53 of the NDPS Act. Relying upon a decision of this Court in the case of Tofan Singh v. State of Tamil Nadu[1], the learned senior counsel submitted that the officer before whom the confessional statement was made being a police officer, the bar of Section 25 of the Indian Evidence Act, 1872 (for short, ‘the Evidence Act’) is attracted. He submitted that the confessional statements are not admissible in evidence against the accused.

3. The learned senior counsel submitted that the contraband was allegedly recovered from Room no.303, which was booked in the name of accused no.4. Therefore, there was no seizure from accused no.3. He further submitted that PW­2 – Nalini Ranjan could not have acted as a Gazetted Officer for the purpose of effecting search under Section 50 of the NDPS Act. He pointed out that PW­2 was heading the raid since the very inception from the stage of receipt of information. In fact, she had led the raiding team. Therefore, she cannot act as an independent person.

4. The learned senior counsel further submitted that the officer who has the power to enter, search, seize and arrest without any warrant or authorization, has no power to investigate the offence and the said power has to be exercised by the officer authorized under Section 53 of the NDPS Act. He submitted that as provided in sub­Section (3) of Section 52, the seized articles are required to be forwarded without any unnecessary delay to the officer empowered under Section 53. He, further, submitted that in this case, PW­2 who had seized bags containing alleged contraband, drew representative samples of the contraband. He submitted that the officer had no power to do it and it could have been done only under the permission of the Magistrate in accordance with clause (c) of sub­Section (2) of Section 52A. The learned senior counsel submitted that only the samples drawn under sub­Section (2) of Section 52A and certified by the Magistrate become primary evidence in respect of the offence. He relied upon the decision of this Court in the case of Union of India v. Mohanlal & Anr.[2] He, therefore, submitted that the prosecution is vitiated as the work of drawing the sample was done by PW­2 without following sub­Section (2) of Section 52A. Lastly, the learned senior counsel submitted that the statements of the two independent witnesses could not have been read in evidence as the prosecution failed to prove that the presence of the witnesses could not be procured. He submitted that in the circumstances, the evidence of PW­2 should have been subjected to a closer scrutiny. He submitted that there is no corroboration to the evidence of PW­2 except for the alleged confessional statement which was not admissible in evidence.

CRIMINAL APPEAL NO. 1185 OF 2011

5. The learned counsel appearing for the appellant in Criminal Appeal No.1185 of 2011, while adopting most of the submissions made by the learned senior counsel in the companion appeal, submitted that the appellant had already undergone a sentence of about nine years. He submitted that the confessional statement of accused no.1 was not voluntary as is clear from the report under Section 57. Moreover, in the search, no incriminating material could be found against accused no.1 as it was accused no.4 who had booked the room in his name from which, the contraband was allegedly recovered. He would, therefore, submit that the Courts ought to have acquitted accused no.1.

6. The learned counsel submitted that adverse inference will have to be drawn against the prosecution for not examining the independent witnesses though they were available. He submitted that the accused have lost the opportunity to cross­ examine the independent witnesses, thereby, causing prejudice.

7. The learned counsel appearing for the appellant further submitted that as per the prosecution’s case, the contraband was recovered from room no.303 in Hotel Suriya, Periamet, Chennai where accused no.4 was staying. According to the prosecution’s case, accused no.1 (appellant) was staying in room no.213 of the Himalaya Lodge, Triplicane, Chennai. He pointed out that according to the prosecution’s case, information was received that accused no.1 was likely to receive 5 Kilograms of heroin from accused nos.[2] and 3. He submitted that the prosecution has not proved that anyone has seen accused nos.[2] and 3 carrying contraband to the room occupied by accused no.4. It is not the prosecution’s case that it was accused no.1 who brought the contraband to room no.303. The contraband has been seized from the room occupied by accused no.4 who has been convicted only for the offences punishable under Section 8(c) read with Section 30 of the NDPS Act. He submitted that even assuming that the accused no.1 showed contraband kept in a bag in the room occupied by the accused no.4, it cannot be inferred that he was in actual or constructive possession of or was dealing with the contraband. The learned counsel submitted that the entire case of the prosecution is suspicious and possibility of the prosecution framing accused no.1, cannot be ruled out.

SUBMISSIONS OF NCB

8. The learned Additional Solicitor General (A.S.G.) appearing for the respondent supported the impugned judgment and pointed out that even if the independent witnesses to the seizure were not examined, the offence can always be proved by the official witnesses. He submitted that the Courts below have believed the testimony of the official witnesses namely, PW­2 and PW­4 to PW­7. He submitted that the contraband was found in the hotel room where all four accused persons were present. He submitted that even if confessional statements are kept out of consideration, the conviction can be sustained on the basis of the evidence of the official witnesses and in particular, PW­2. The evidence of PW­2 has not been shaken in the cross­ examination. The learned A.S.G. would urge that no interference is called for with the concurrent findings of the Courts below.

OUR VIEW

9. The prosecution’s case is that PW­2, who was the Intelligence Officer of the NCB, received information on 16th May 2002 at about 10:45 a.m that accused no.1 who was indulging in drug trafficking, has come to Chennai and was staying in room no.213 of the Himalaya Lodge, Triplicane, Chennai. He had come there to receive 5 kilograms of heroin from accused nos.[2] and 3, who were staying in room no.211 of Hotel Blue Star International, Chennai. The information received was that the accused nos.1, 2 and 3 had planned to deliver the contraband to accused no.4 who was residing in room no.303 of Hotel Suriya, Periamet, Chennai. The job of accused no.4 was to transfer it to Tuticorin and from there, to Sri Lanka. PW­2 raided room no.303 occupied by accused no.4 along with other officers and two independent witnesses namely, Devendran and Prabhu. According to the prosecution’s case, after the door was knocked on, it was opened and it was found that all the four accused were present there. When PW­2 questioned whether they were in possession of any narcotic drug, the first accused took out a blue coloured rexine bag which, according to the prosecution, contained packets of a total of 5.067 kilograms of heroin. PW­2 seized the heroine and took two samples from each packet by placing them in two plastic covers separately. The plastic packets were sealed and the remaining contraband was also sealed. According to the prosecution’s case, all the accused made confessional statements under Section 67 of the NDPS Act.

10. Though the two independent witnesses were not examined before the Court, their statements were marked as Exhibits P­19 and P­71. A perusal of the impugned judgment of the High Court shows that it was held that the conditions prescribed by Section 53A of the NDPS Act were not fulfilled and therefore, these two statements were inadmissible. The High Court believed the testimony of PW­2 and PW­4 to PW­7 and held that the confessional statements of the accused could be taken as corroboration for the evidence of official witnesses.

11. Paragraphs 158.[1] and 158.[2] of the majority view in Tofan Singh’s case[1], read thus: