TaxTMI 
TaxTMI 
TaxTMI 
2017 (12) TMI 1447
X X X X Extracts X X X X
X X X X Extracts X X X X
....haval [A2], Proprietor of Rajeshwar Textiles, Ground Floor, New No.194, Old No.236, Thambu Chetty Street, Mannadi and one Madhan [A1], a Sri Lankan national having Passport No. N-0990980 are indulging in trafficking of narcotic drugs and they have transported a consignment from Ahmedabad to Chennai, which would reach Rajeshwar Textiles around 11.00 in the morning. [a] P.V.Jayaraman [P.W.1] recorded the information vide Ex.P.1 and submitted the same to the Assistant Director, DRI, Chennai, who further directed R.Padmanabhan, Senior Intelligence Officer, DRI, Chennai to arrange a team and proceed immediately. R.Padmanabhan, Senior Intelligence Officer, DRI, along with a team of Officers, viz., P.V.Jayaraman [P.W.1], Intelligence Officer, DRI, Chenchuraman [P.W.3], Intelligence Officer, DRI, Shyamalnath [P.W.8], Intelligence Officer, DRI, Vijayakumar [P.W.9], Intelligence Officer, DRI and others proceeded to Rajeshwar Textiles in Thambu Chetty Street. They called two persons, by name M.Sakthivel and K.Kumar, to be witnesses for the search. When the Officers went to Rajeshwar Textiles, Madhan [A1] and Chaval [A2] were there. They introduced themselves and when they questioned the duo ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....M.O.2 [c] On the personal search of Chaval [A2], the following items were seized: "DOCUMENTS AND CURRENCIES RECOVERED AND SEIZED FROM SHRI CHAVAL @ RAHUL Sl.No. Description of documents Exhibits/M.Os. 1 Delivery Receipt/Cash Receipt No.305200 dated 8.7.2012 of M/s Anmol Transports, Regd. Office No.9, Hirabhal Market, Outside Raipur Gate, Kankaria Road, Ahmedabad 22 (having office at Chennai at Old No.3, New No.5, Varadha Mutiyappan Street, Chennai 600 001) consigned to M/s.Rajeshwar Textiles Ex.P.7 2 L.R.No.446660 dated 3.7.2012 of M/s Anmol Transports, Ahmedabad Consignor : King Collections, Ahmedabad Consignee: Rajeshwar Textiles one parcel declared value Rs. 27,720/- (Invoice No.92) Ex.P.8 3 Bill of M/s. King Collection, 329/4, Adovala Ka Dehia, Nr. Gheekanta Police Chowkey, Gheekanta, Ahmedabad 380 001 Book No.92 Bill No.92 dated 3.7.2012 Transport : Anmol Transport Ex.P.9 4 Visiting card of M/s. Anmol Transports Ex.P.10 5 Indian Currency of Rs. 1,18,000/- M.O.7 6 Mobile No.9500043090 IMEI Nos.355317/04/141932/5 & 355318/04/141932/3; Airtel SIM No.89914 00000 06745 67579H1; Mobile make : SAMSUNG DUOS Model No.GT-B7722 Made by Samsung; with Seria....
X X X X Extracts X X X X
X X X X Extracts X X X X
....haval [A2] in trafficking heroin; that they had earlier supplied 1,700 gms. of heroin by concealing it in ready-made garments, which was sent in the name of 'Kushboo Fabrics'' by air courier to Sri Lanka and the consideration of Rs. 10 lakhs was paid to the brothers by hawala; that again, Babulal asked him to come and collect 3.735 kgs, of heroin from his brother Chaval [A2]; that he came to Chennai on 06.07.2012 by Jet Airways 0251 and booked a room at NST Palace in Thambu Chetty Street; that he contacted Chaval [A2] to find out if the parcel had reached; that he handed over Rs. 1,18,000/- [M.O.7] on 07.07.2012 to Chaval [A2]; that on 08.07.2012, on coming to know that the parcel had reached the shop of Chaval [A2], he went there and collected it and at that time, the DRI Officers came there and effected seizure; that Rs. 18 lakhs was already paid to Chaval [A2] by hawala and that he was intending to take the contraband to Sri Lanka for giving it to one Damini. [g] After recording the statement of Madhan [A1], Vijayakumar [P.W.9], Intelligence Officer, placed Madhan [A1] under arrest by serving on him the Arrest Memo [Ex.P.66]. He also submitted a report under Section....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he transmission of the records from the Court of the Remanding Magistrate to the Special Court, P.V.Jayaraman [P.W.1] has submitted the properties to the Special Court for NDPS Act Cases on 16.07.2012 with a requisition to send sample P1S1 to the Central Revenues Control Laboratory, Chennai, for chemical analysis. Accordingly, the learned Special Judge for NDPS Act Cases sent the sample P1S1 with the seal of the DRI and the seal of the Special Court to the Central Revenues Control Laboratory, vide Ex.P.17. The sample was received on the same day by the laboratory and it was tested by Gandhimathy, Assistant Chemical Examiner [P.W.4], who, in her evidence before the Court and in the Test Report [Ex.P.49] has stated that the sample answered positive for the presence of Diacetyl morphine (heroin). The relevant portion of the test report is as under: "Report: Lab No.425, dt.16.07.2012 (marking as P1S1) The sample is in the form of a brown coloured powder. It answers the tests for the presence of Diacetyl morphine Heroin) and is covered under NDPS Act 1985. Weight of sample received with plastic cover = 5.67 gms Weight of remnant sample returned with plastic cover = 4.58 gms No....
X X X X Extracts X X X X
X X X X Extracts X X X X
.....P.53]. His attempts to locate King Collection proved futile. [l] On the request of DRI, Chennai, Bhawar Singh, Inspector of Customs and Central Excise, Jodhpur, searched the residence of Chaval [A2] in Jodhpur in the presence of his father and no incriminating materials were seized. The search mahazar was marked as Ex.P.58. After collating all the records and documents, P.V.Jayaraman [P.W.1] filed the complaint in C.C.No.4 of 2013 before the Special Court for NDPS Act Cases, Chennai, against Madhan [A1], Chaval [A2] and Babulal [A3] for the offences under Sections 21 (c), 27-A, 28 and 29 of the NDPS Act read with Section 8(c) and Section 135(A) of the Customs Act. [m] The case against Babulal [A3] was split up and he was shown as absconding accused. [n] After taking cognizance of the complaint, the copies of the complaint and relied upon documents were furnished to Madhan [A1] and Chaval [A2] and the trial Court framed two charges, viz., under Section 8(c) read with 29 of the NDPS Act for conspiracy to possess, transport and export heroin; and under Section 8(c) read with 21(c) of the NDPS Act for possession of 3.735 kgs of heroin. When questioned, the accused pleaded 'not ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mined by this Court in the presence of both the accused and their counsel. In his evidence before the Court, P.V.Jayaraman [C.W.1] has stated that R.Padmanabhan, Senior Intelligence Officer of DRI was in the cadre of Superintendent and was a Group 'B" Gazetted Officer and that he had died on 26.12.2012. His Death Certificate was marked as Ex.C.1 and his signature in the Mahazar [Ex.P.2] was identified. Learned Senior Counsel appearing for the accused fairly conceded the position and did not cross-examine P.V.Jayaraman [C.W.1]. Since both the accused were present in the Court, this Court questioned them under Section 313 Cr.P.C. about the evidence given by P.V. Jayaraman [C.W.1] and also about the averments in their statements under Section 67 of the NDPS Act, viz., Exs.P.65 and 60, for which, both the accused submitted that they were illegally detained in the DRI Office and were forced to copy the statement that was kept prepared by them. This Court will consider all these aspects in the course of the judgment. 10. Now, it may be necessary to catalogue the points raised by Mr.A.Raghunathan and Mr.B.Kumar, learned Senior Counsel for Madhan [A1] and Chaval [A2] respectively. (....
X X X X Extracts X X X X
X X X X Extracts X X X X
....009) 16 SCC 644]; and State of Rajasthan vs. Parmanand and another [(2014) 5 SCC 345]. 9 In Ex.P.41, the summons that was issued to K.Kumar, the date has been shown as 15.12.2012, whereas, Kumar was asked to appear before the DRI on 29.08.2012 and therefore, the statement of Kumar [Ex.P.42] stands vitiated. 10 The accused retracted his confession statement and alleged that it was obtained by torture by sending a letter from the prison to the Special Court on 23.07.2012. (B) SUBMISSIONS OF MR.B.KUMAR, LEARNED SENIOR COUNSEL FOR CHAVAL [A2]: 1 The information report [Ex.P.1] is very exhaustive and appears very artificial and improbable. 2 The search of the person of the accused in the presence of Padmanabhan, Gazetted Officer, will not satisfy the provisions of Section 50 of the NDPS Act. 3 Reliance was placed on K.Mohanan vs. State of Kerala [(2000) 10 SCC 222], Karnail Singh vs. State of Haryana [(2009) 8 SCC 539] and State of Rajasthan vs. Parmanand and another [(2014) 5 SCC 345]. 4 There is no clear evidence by the Officials to show who had given the option under Section 50 of the NDPS Act to the accused, inasmuch as Vijayakumar [P.W.9] has stated that Padmanabhan ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....not from the person of the accused, but was from the textile consignment. 5 Reliance was placed on the Constitution Bench judgment of the Supreme Court in Vijaysinh Chandubha Jadeja vs. State of Gujarat [(2011) 1 SCC 609]. 6 That Sakthivel [D.W.2], who was a mahazar witness, has been won over by the accused and that is why he has been evading the receipt of summons from the Special Court and ultimately, appeared as a defence witness, as he was in the clutches of the accused. 7 One of the principal accused, viz., Babulal, the elder brother of Chaval [A2], is still in abscondence and that has to be borne in mind and the drug syndicate is tampering the evidence against the accused. 8 When the accused were produced before the remanding Magistrate, they did not lodge any complaint of torture or beating to the Magistrate, which the Magistrate has recorded in the remand application. 9 After the orders of remand, the accused were produced before the Medical Officer at the General Hospital, who has also not noted any injury on the person of the accused and only thereafter, the accused was admitted into the prison. 10 Dr.K.S.Gowrishankar [D.W.1], who had the outpatient ticket of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n of P.V.Jayaraman [P.W.1], he has stated that he has received the information over phone and while he was receiving it, he typed it out in his computer. It would have been impossible for P.V.Jayaraman [P.W.1], to have received the information over phone and simultaneously type it in his computer. On a perusal of the Information Report [Ex.P.1], it is evident that it is a computer print out. It is common knowledge that every Intelligence Agency in this country has its own informants and moles to gather intelligence. Exchange of intelligence amongst Intelligence Agencies for proper and concerted action is also possible. Section 68 of the NDPS Act is akin to Section 125 of the Evidence Act and an Officer cannot be compelled to disclose his informant to anyone. It is possible that the informant would have been gathering intelligence about the gang for over a period of time and would have passed on all minute details relating to the players in the offence to the concerned Officer. Therefore, the law does not permit this Court to hazard a guess and conclude on surmises that the informant would not have given such amount of details to the officer over phone. It also depends upon the leve....
X X X X Extracts X X X X
X X X X Extracts X X X X
....es of 5 gms. each were drawn and they were given marking as P1S1, P1S2 and P1S3 and in the Court, they were marked as M.Os.8 to 10. The balance contraband was also sealed with DRI seal and was marked in the Court as M.O.11. The seized covers used for packing the contraband was marked as M.O.12 and the cartons containing the churidar materials was marked as M.Os.13 and 14. This Court called for M.Os.12,13 and 14 for inspection and found that M.O.12 is a packing material, viz., LDPE sack and M.Os.13 and 14 contain churidar materials. On similar lines is the evidence of Chenchuraman [P.W.3] Shyamalnath [P.W.8] and Vijayakumar [P.W.9]. Since R.Padmanabhan, Gazetted Officer had died on 22.11.2012 [vide Ex.C1], his name was not included in the list of witnesses appended to the complaint that was filed in the Special Court for NDPS Act Cases on 26.12.2012, as could be seen from the date seal affixed on the complaint [Ex.P.44]. 16. Learned counsel for the defence contended that Shyamalnath [P.W.8] has not stated that he explained the option in Hindi to Chaval [A2] and Chenchuraman [P.W.3] has stated that the option under Section 50 of the NDPS Act was given by R.Padmanabhan to Madhan [A1]....
X X X X Extracts X X X X
X X X X Extracts X X X X
....se of which packets of heroin were found in the shoulder bags carried by them and were recovered from there. The facts of the case in hand are very close to another decision of this Court in Dilip v. State of M.P. [(2007) 1 SCC 450." (3) In State of Rajasthan v. Parmanand [(2014) 5 SCC 345], the Supreme Court relied upon Dilip (supra) and Shah Alam (supra) and has held as under: "15. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, Respondent 1 Parmanand's bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of Respondent 2 Surajmal was also conducted. Therefore, in the light of the judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application." 20. In the following line of judgments, the Supreme Court has held that the provisions of Section 50 of the NDPS Act will apply only when the contraband has been recovered from the searc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat Section 50 of the NDPS Act will not apply. 20 (7) In Kanhaiya Lal vs. State of Madhya Pradesh, [2000 (10) SCC 380], the accused was found carrying 1 kg of opium in a bag and the Supreme Court held that Section 50 of the NDPS Act will not apply. 20 (8) In Madan Lal and another vs. State of Himachal Pradesh [(2003) 6 Supreme 382], the accused was travelling in a car, in which, a black colour bag was found. On checking the bag, it was found to contain 820 gms. of charas. Relying upon Baldev Singh (supra), the Supreme Court held that Section 50 of the NDPS Act will not apply. 20 (9) In Saikou Jabbi vs. State of Maharashtra [2003 (8) Supreme 582], the accused was intercepted in Sahara Airport in Bombay with a baggage and 1 kg of heroin was seized therefrom. Relying upon the judgment in Baldev Singh (supra), the Supreme Court held that the provisions of Section 50 of the NDPS Act will not apply. 20 (10) In State of Himachal Pradesh v. Pawan Kumar [2005 AIR SCW 2154], a three Judge Bench of the Supreme Court was specially constituted to consider the applicability of Section 50 of the NDPS Act. The Supreme Court went into all the previous judgments and after placing reliance on Bal....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Thirdly, this issue in our considered opinion is no more res integra in view of the observations made by this Court in Madan Lal v. State of H.P. [(2003) 7 SCC 465 : 2003 SCC (Cri) 1664". 20 (14) Very recently, in Makhan Singh vs. State of Haryana, [(2015) 12 SCC 247], the accused was sitting in a fitter-rehra, from where 120 kgs of poppy husk was seized. The Supreme Court relied upon Baldev Singh (supra), Pawan Kumar (supra) and Ajmer Singh (supra) and held that Section 50 of the NDPS Act cannot be applied to the case. However, the Supreme court acquitted the accused on the ground that the prosecution had failed to prove through independent evidence connecting the appellant with the fitter-rehra. Thus, as against three judgments relied upon by the defence, there are 11 judgments of the Supreme Court which are to the effect that for attracting the provisions of Section 50 of the NDPS Act, recovery should have been pursuant to the search of the person of the accused. In fact, the following passage from the Constitution Bench judgment of the Supreme Court in Baldev Singh (supra) answers the issue beyond cavil. "12. On its plain reading, Section 50 would come into play only in th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....m her person and the Supreme Court acquitted the accused for possessing heroin, since the search was conducted in violation of Section 50 of the NDPS Act, but convicted the accused for the recovery of charas from her house. Even after such an authoritative pronouncement of the Supreme Court, it is too late in the day to canvass that Section 50 of the NDPS Act would apply even in a case where the recovery has not been made from the search of the person of the accused. 24. In this case, the conviction of the appellant has been for possession of 3.750 kgs of heroin in a carton amongst churidar materials in the premises of Rajeshwar Textiles, where both Madhan [A1] and Chaval [A2] were available at the time of seizure. It was only on their showing, the carton [M.O.13] was opened and searched and heroin was recovered from amongst churidar materials. 25. At this juncture, it may be necessary to advert to one submission of Mr.B.Kumar, learned Senior Counsel that the recovery of the documents, viz., Exs.P.4 to 10 and recovery of Nokia mobile [M.O.1], Nokia Lumia mobile [M.O.2], Indian currency of Rs. 60,550/- [M.O.3], 153 US Dollars [M.O.4], Sri Lankan currency 4,670/- [M.O.5], Samsung m....
X X X X Extracts X X X X
X X X X Extracts X X X X
....WAR TEXTILES, No.194, Thambu Chetty Street, Mannady, Chennai". From Chaval [A2], Exs.P.7, 8 and 9 were recovered. Ex.P.7 is the delivery receipt dated 03.07.2012 of Anmol Transports; Ex.P.8 is the lorry receipt, LR No.446600 dated 03.07.2012 of Anmol Transports, Ahmedabad, wherein consignor is shown as King Collection, consignee is shown as Rajeshwar Textiles and Ex.P.9 is the bill of King Collection, 329/4, Adovaia Ka Dehla, near Gheekanta Police Chowky, Ahmedabad. These three items were seized from Chaval [A2] and by invoking Section 66(c) of the NDPS Act, this Court can draw presumption and link it with M.O.12, the packing material used for packing the contrabands. To say that the DRI Officers brought all those documents, including Indian currency of Rs. 1,18,000/-, US dollars and Sri Lankan currency, from their Office and planted them on the accused along with the contraband and churidar materials, defies credulity. 28. In M.Prabhulal (supra), the Supreme Court has clearly held that an Officer of a Gazetted rank acting under Section 41 of the NDPS Act need not comply with Section 42 of the Act. In this case, the search team was headed by R.Padmanabhan, Senior Intelligence Offi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... been filed in the trial Court and which is available in the Court records. The memo dated 13.05.2015 reads as follows: "2. It is respectfully submitted that this Hon'ble Court had issued summons to serve to Shri M.Sakthivel s/o S.Madhachary (Late) as Witness 13 and to Shri K.Kumar S/o K.Kothandaraman as Witness 14 to appear in this Hon'ble Court on 13/05/2015. Both the summons were sent by speed post and were returned by the postal authorities as "Door Locked/Not claimed" 3. It is respectfully submitted that efforts were made to handover the summons to both the witnesses on the said address and found the doors locked. Though the whereabouts of the said persons were enquired with the neighbours, no clues were forthcoming immediately. The un-served summons returned by the postal department is returned through this Memorandum." 30. Therefore, this is not a case where the prosecution had not made any attempt to examine the mahazar witnesses. Both the witnesses were not available in the address given by them at the time of seizure. However, the defence was able to produce Sakthivel as defence witness. Therefore, it is clear that Sakthivel is not a fictitious person. Sakthi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eedings? Even an investigator with a modicum of common sense will not be gullible to have a close friend of the accused as panchanama witness. A panchanama witness should be a person who should not be known to the raiding party and the accused. That apart, according to this witness, he was also detained illegally on 08.07.2012 and 09.07.2012 . He has not stated as to what was done to him thereafter. Therefore, it has to be inferred that he was let off by the DRI Officials after getting his signature in the panchanama and other documents. Thereafter, what did he do? There is no explanation at all in his examination-in-chief. He has stated that he came to Chennai to write Group-IV examination on 07.07.2012, which means that he should be a graduate. He disappeared after 09.07.2012 and resurfaced only on 11.12.2015 to give evidence in favour of the accused. In the first portion of the chief-examination, he has stated that his friend Senthil Kumar called him over phone and told him that his friend [Senthil Kumar's] is coming from Sri Lanka and asked him to join him. Therefore, he went to NST Palace around 6 O'clock and there, he saw Madhan [A1], who was already known to him. In ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....this because, Kumar has received the summons on 29.08.2012 and has given his statement [Ex.P.42] on the same day. Therefore, reference to the dated 15.12.2012 [Ex.D.1] is obviously a typographical error. Even if this Court were to give the benefit of this discrepancy to the accused, no consequences would follow because, Kumar was not examined in the trial Court and therefore, his statement [Ex.P.42] is worthless. 36. Time and again, the Supreme Court has stated that the evidence of the Investigating Officer relating to search or seizure will not become vitiated solely for the reason that the evidence is not supported by independent witnesses [See: Akhal Ahmed vs. State of Delhi [(1999) SCC (Crl.) 425], Prabhulal vs. Assistant Director, DRI [2003) 8 SCC 449] and Sahib Singh v. State of Punjab [(1996) 11 SCC 685]]. 37. To recapitulate, in this case, the evidence of the Officers show that R.Padmanabhan, Senior Intelligence Officer, DRI had called two persons, viz., Sakthivel [D.W.2] and Kumar to stand as search witnesses. R.Padmanabhan died even before the complaint was filed. Summons were taken by the prosecution to examine Sakthivel [D.W.2] and Kumar, but in vain. However, Sakthiv....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eme Court has held that such confessions are admissible in evidence. 43. Learned counsel for the defence contended that the confession would be hit by Section 24 of the Evidence Act, if it is shown that the same has been obtained under coercion. This Court has no iota of doubt on this legal proposition. The defence counsel relied upon the evidence of Dr.K.S.Gowrishankar [D.W.1] who has stated that he examined Madhan [A1] in the jail on 09.07.2012 and noted a contusion on both buttocks region, thigh, which were two day old injuries. The Health Screening report has been marked as Ex.D2. He has also stated in his examination that the 4 injuries could have been caused by beating with lathi or iron rod. In his cross examination, he has stated that every prisoner will be admitted into the prison only after he is examined by a Medical Officer of the Government Hospital. Accordingly, Madhan [A1] and Chaval [A2] were also produced before the Medical Officer in the Government Hospital, who has issued an outpatient ticket, wherein, no injuries have been noted. Dr.K.S.Gowrishankar [D.W.1] admitted that the outpatient tickets issued by the Government Hospital before the admission of Madhan [A1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....0 SCC 203], the Supreme Court has observed as under: "It must be remembered that the appellant Naushad has no case that when he was produced before the Magistrate immediately after his arrest, that he made any grievance of any maltreatment administered to him by the members of the Narcotics Control Bureau." Therefore, this Court has no reason to believe that the accused were subjected to torture and the confessions were obtained thereafter. RETRACTED CONFESSION: 47. Madhan [A1] and Chaval [A2] did not retract their confession statement at the time when they were produced before the Magistrate for remand on 09.07.2012. Madhan [A1] has sent a retraction letter, which has been received by the Special Court on 23.07.2012, in which he has stated that he used to purchase textiles from Rajeshwari Textiles and that the Officers forcibly took him away from his lodge room and foisted a case against him. Chaval [A2] has sent a retraction letter dated 22.08.2012 stating that, he hails from Jodhpur in Rajasthan and is into textile business; that the DRI Officers have foisted a false case on him. The question is, what weight can be attached to a retracted confession. The Supreme Court, in S....
X X X X Extracts X X X X
X X X X Extracts X X X X
....that the confession statement of Madhan [A1] and Chaval [A2] are voluntary and truthful and the same can be relied upon along with the seizure of the contraband. 52. In this case, the recovery of heroin has been made in the presence of Madhan [A1] and Chaval [A2]. It is not the case of the prosecution that they are linking the seizure to the accused via the confession statement alone. Confession of an accused will assume great significance in a case based on circumstantial evidence and not in a case based on direct evidence. In the former category of cases, the confession will act as a bridge between the maker [accused] and the offence. In this case, the accused were caught with the contraband in Rajeshwar Textiles. Had the seizure in this case been done by a Police Officer, the confession statement would have been hit by Section 25 of the Evidence Act and not relevant at all. Only to get over such contingencies, the Parliament has designed two presumptions under the NDPS Act, viz., Sections 35 and 54, which read as under: "35. Presumption of culpable mental state. (1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....CW 4536]. Therefore, even if the confession is kept at bay, there are overwhelming materials to show that Madhan [A1] and Chaval [A2] were in custody of the contraband and it is for them to disprove the prosecution case. 56. Learned Senior Counsel contended that the failure of the prosecution to examine Mahendar, Office Boy of Rajeshwar Textiles who is said to have brought the consignment from Anmol Transport Office in Chennai to Rajeshwar Textiles is fatal to this case. 57. It is seen that the DRI Officers have recorded the statement of Mahendar and he was also shown as witness no.15. He was a worker under Chaval [A2]. He admittedly hails from Rajasthan and he had given his Rajasthan address. The Court had sent summons, but the same could not be served on him and therefore, he was not examined. 58. Learned Senior Counsel also submitted that the failure of the prosecution to examine V.Chandrakumar, Manager of NST Palace from whom the DRI Officials obtained the passport of Madhan [A1], the Hotel Arrival Register and other documents, is fatal to this case. 59. In the opinion of this Court, the examination of this witness would have only shown that Madhan [A1] had taken a room in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....from Anmol Transport to Rajeshwar Textiles. Therefore, in the facts and circumstances of the case, no adverse inference can be drawn as canvassed by the learned Senior Counsel. 64. Now, coming to the first argument of Mr.A.Raghunathan, that the trial in this case should not have been conducted under Chapter XIX-B of the Code, this issue is no more res integra in the light of the authoritative judgment of this Court in M.Prabhu Lal vs. Assistant Director, Directorate of Revenue Intelligence, Tiruchirappalli [1997 (1) LW (Crl.) 60], wherein, this Court has gone into the entire gamut of the arguments and after relying upon the deeming provision in Section 36-C of the NDPS Act, has held as follows: "16. In the light of the adverting of the observations of the Apex Court above referred regarding the deeming provisions and under the concept of legal fiction in the two judgments, and the specific provisions contained in Ss.36-A to 36-D of the N.D.P.S. Act, the very effort taken by Mr.B.Kumar on behalf of the petitioner is being rendered futile and as such it cannot be countenanced. It would follow therefore that on identifying the proper materials for the framing of the charges after t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cessary to advert to the submissions of Mr.A.Raghunathan in this regard. 67. To answer Mr.A.Raghunathan's submission, it may be necessary to briefly narrate the history of the NDPS Act. India being an opium producing country, became a hotbed for narco-arms smuggling, as opium is the base for preparing heroin (Diacetyl morphine), which is much in demand in the West. Heroin became a medium of exchange for purchase of arms by terrorists groups all over the world. Terrorism in Punjab reached its pinnacle in the early 1980's and Smt.Indira Gandhi, the then Prime Minister, fell victim to the bullets of her own bodyguards. In such a surcharged environment, the Parliament brought in two enactments, viz., Terrorist and Disruptive Activities (Prevention) Act, 1985 [for short "the TADA"] and the NDPS Act, 1985 in order to break narco-terrorism. Until then, drug related offences were being dealt under the Opium Act, 1878 and the Dangerous Drugs Act, 1930, which were effete. Though we had signed the Convention on Psychotropic Substances of 1971, we had not taken any steps to bring in statutory changes in our laws. The Parliament, in its wisdom, felt the need to have stringent drug law....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... an offence under this Act or upon a complaint made by an officer of the Central Government or a State Government authorized in the behalf, take cognizance of that offence without the accused being committed to it for trial." 70. Section 36-C was also brought in by Amendment Act 2 of 1989 with effect from 29.05.1989 and it reads as under: "36-C. Application of Code to proceedings before a Special Court.Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor." 71. It is beyond cavil that the Officers of the DRI have been authorised by the Central Government to file complaint before the Special Court under the NDPS Act. If Mr.A.Raghunathan's argument is accepted, there will be two forms of trial before the Special Court, viz., one under Chapter XVIII-Trial before a Court of Session, of the Code, if the case is based on....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y if the offender had acquired money by commission of a crime enumerated in the schedule to the Act. 76. Section 44(1)(c) and (d) was introduced in the PMLA only by Central Act 2 of 2013 with effect from 15.02.2013. Under Section 44(1)(b) of the PMLA, as it stood in 2002, a Special Court was competent to take cognizance of an offence under Section 3 of the PMLA on a police report and upon a complaint made by an authorised Officer. By Amendment Act 20 of 2005, the power of the Special Court to take cognizance based on police report was deleted with effect from 01.07.2005. Thereafter, by Act 2 of 2013, Section 44(1)(c) and (d) was introduced with effect from 15.02.2013. On a reading of this provision, it is clear that a Special Court cannot take cognizance on a police report and can take cognizance without committal proceedings on the complaint filed by authorised officers. Section 44(1)(c), which is a new provision introduced with effect from 15.02.2013, empowered a Court which has already taken cognizance of the scheduled offence to commit the case to the Special Court, if the Special Court had taken cognizance of the offence under the PMLA. For example, an offence under Section 4....