TaxTMI 
TaxTMI 
2017 (4) TMI 1018
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....o undergo two years rigorous imprisonment and to pay a fine of Rs. 15,000/- (Rupees fifteen thousands) in default to undergo rigorous imprisonment for six months. The trial Court acquitted both the accused/respondents for the offence under Section 8(c) r/w 29 of the NDPS Act. Now, challenging the order of acquittal in respect of charge under Section 8(c) r/w 29 of NDPS Act, the appellant filed the present appeal. 3. The case of the prosecution, in brief, is as follows: (i) On 21.12.1998, the Officers of the Narcotics Control Bureau(NCB), Chennai, on information, intercepted the first accused at Kamarajar Domestic Airport, Chennai, while he bound for Mumbai. P.W.1 was working as Intelligence Officer, Narcotics Control Bureau, Chennai along with a team of officers based on an information received through his informant and after revealing his identity, informed him about the information and informed him that he has a right to be taken to Magistrate for search, P.W.1 searched the bag belonging to the first accused and found 2 Kilo grams of narcotics substance(heroin) and he tested the substance with test hit brought by them and got the positive report. After following the necessary ....
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....and found that all the three samples are heroin and he sent report Ex.P23. P.W.3 is working as Intelligence Officer in NCB, Chennai and he conducted investigation. Based on the statement given by A-2 he recorded the statement of one Magudaraj and he identified the second accused. P.W.4 is another Intelligence Officer working in NCB at Chennai. He searched the house of A-2 at Palavakkam and he found no incriminating materials. P.W.5 is an Intelligence Officer working in NCB at Chennai. He along with P.W.1 examined the first accused and thereafter issued summons to A-1 and recorded his statement. P.W.6 is also an Intelligence Officer working in NCB at Chennai. He was in the part of the team intercepted the first accused and he issued summons to the second accused, recorded the statement of A-2, arrested him and remanded him to judicial custody. P.W.7 was working as Traffic Superintendent in Kamarajar Domestic Airport, Chennai. He was a witness to the seizure of heroin. P.W.8 is working as Superintendent in NCB, Chennai. He received an information that a person was carrying heroin and travelling from Chennai to Bombay and he informed the same to P.W.1. P.W.9 is the witness to the seiz....
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....ked as Exs.P31 and P44, the Court below has believed the said confession statement, convicted the respondents/accused 1 and 2 for the other offences, but acquitted the accused for the charge of conspiracy on the ground that there was no further investigation regarding the statement given by the respondents/accused 1 and 2. Once the Court below come to a conclusion that the statement given by the accused under Section 67 of the NDPS Act is voluntary and admissible in evidence and based on the same convicted the respondents/accused, it cannot partly disbelieved the statement and acquitted the accused for the charge of conspiracy, as sufficient materials available from the statement of the accused to prove the conspiracy. The learned counsel appearing for the appellant further submitted that it is settled law that the confession of the accused made under Section 67 of the NDPS Act can be a sole basis for convict the accused and from the confession of the accused, the prosecution has clearly proved the conspiracy between the accused for committing offence. Hence, the Court below ought not to have acquitted the accused stating that from mere filing the statement, it cannot be presumed t....
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....ection 67 of the NDPS Act. Both the statement were marked as Exs.P31 and P44. The Court below considered the confession statement of the accused and held that both the statement of A-1 and A-2 are admissible in evidence and relying upon the same, the Court below convicted the first accused/first respondent under Section 8(c) r/w 21(c) of NDPS Act, and sentenced him to undergo ten years rigorous imprisonment and to pay a fine of Rs. 1,00,000/- (Rupees one lakh) in default to undergo rigorous imprisonment for one year and found the second accused/second respondent guilty and convicted him under Section 8(c) r/w 21(b) of NDPS Act and sentenced him to undergo two years rigorous imprisonment and to pay a fine of Rs. 15,000/- (Rupees fifteen thousands) in default to undergo rigorous imprisonment for six months. But, the Court below acquitted both the accused/ respondents for the offence under Section 8(c) r/w 29 of the NDPS Act on the ground that the appellant did not conduct any investigation on the statement given by A1 and A-2 in Ex.P31 and Ex.P44, and by mere filing of said statement, Court cannot presume that A-1 and A-2 had conspiracy with A-3 regarding the drug trafficking and com....
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....ement given by the accused. The Hon'ble Supreme Court in KANHAIYALAL case reported in 2008(4) SCC 668 (supra) has held that the confessional statement recorded by the officer in the course of investigation of a person accused of an offence under the NDPS Act is admissible in evidence against him and also held that the conviction can be maintained solely on the basis of confession given under Section 67 of the NDPS Act, and the Hon'ble Supreme Court held as follows:- "44. In addition to the above, in Raj Kumar Karwal v. Union of India this Court held that officers of the Department of Revenue Intelligence who have been vested with powers of an Officer-in-Charge of a police station under Section 53 of the NDPS Act, 1985, are not police officers within the meaning of Section 25 of the Evidence Act. Therefore, a confessional statement recorded by such officer in the course of investigation of a person accused of an offence under the Act is admissible in evidence against him. It was also held that power conferred on officers under the NDPS Act in relation to arrest, search and seizure were similar to powers vested on officers under the Customs Act. Nothing new has been submitt....