TaxTMI 
TaxTMI 
2017 (12) TMI 1449
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....le without moustache and the said Sakila, a Nepali woman presently residing at Kannagi Nagar, Chennai, aged about 35 years about 5 feet." [a] Apart from Ibrahim [A1] and Shakila [A2], the informant also gave information about the involvement of one Suresh @ Maxi and Jamal of Sri Lanka, one Chacha and his son Manu of Rajasthan, in drug trafficking. Krishnamoorthy [P.W.1] recorded the information, vide Ex.P.1 and submitted the same to Karthikeyan [P.W.4], Superintendent, NCB, who discussed with Krishnamoorthy [P.W.1] and directed him to take further action in this regard. [b] On 17.02.2009, Krishnamoorthy [P.W.1] and a team of Officers went to the Central Railway Station in the morning and awaited the Railway announcement. He approached one Chandran [P.W.5], Assistant Sub-Inspector of Police, Railway Protection Force and Shanmugham, Constable of Railway Protection Force and requested them to stand as witnesses. He explained to them the information with him and they also agreed to join the raid party. The arrival of Jaipur Express in Platform No.11 was announced and so, Krishnamoorthy [P.W.1], the two witnesses and their party waited at the exit point in the platform and were looki....
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....o [Ex.P.9]. K.R.Srikanth [P.W.3], Intelligence Officer, NCB questioned Shakila [A2] and recorded her statement, which was marked as Ex.P.22. K.R.Srikanth [P.W.3] arrested Shakila [A2] by serving on her the Arrest Memo [Ex.P.23]. K.R.Srikanth [P.W.3] submitted a report [Ex.P.20] under Section 57 of the NDPS Act to the Superintendent, NCB. [g] Sivaraman [P.W.2] prepared the Remand Application and produced both the accused along with the seized contraband before the IX Metropolitan Magistrate, Saidapet, Chennai on 18.02.2009 vide Ex.P.11. In the Remand Application, the learned IX Metropolitan Magistrate has endorsed "Both the accused produced, no complaints. Remanded till 04.03.2009. Produce both the accused before the Hon'ble Judge, NDPS Court on 04.03.2009." The properties that were produced before the Magistrate were returned to the NCB for production before the Special Court for NDPS Act Cases. [h] After the transmission of the case records from the Court of the IX Metropolitan Magistrate to the Special Court for NDPS Act Cases, Chennai, the properties were produced before the Special Court with a requisition dated 05.03.2009, to send the sample marked S1 for Chemical Examin....
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....hs Rigorous Imprisonment. However, Ibrahim [A1] was acquitted for the offences under Section 8(c) read with 28 and 29 of the NDPS Act and Section 14 of the Foreigners Act. Challenging the conviction and sentence, Ibrahim [A1] is before this Court. 5. Heard the learned counsel for the appellant and Mr.N.P.Kumar, learned Special Public Prosecutor for NCB Cases. 6. Learned counsel for the appellant contended as follows: [a] that there is no proper compliance of Section 42 of the NDPS Act and that the information was not properly recorded and sent to the official superior as required by the said Section. (b) that there is violation of Section 50 of the NDPS Act, inasmuch as option to be searched in the presence of a Gazetted Officer or a Magistrate was not properly given to the appellant. Strong reliance was placed on the judgments of the Supreme Court in Dilip and another vs. State of Madhya Pradesh [(2007) 1 SCC 450], Union of India vs. Shah Alam and another [(2009) 16 SCC 644]; and State of Rajasthan vs. Parmanand and another [(2014) 5 SCC 345]. (c) that the Officials should not have called upon the members of the Railway Protection Force to stand as independent witnesses and t....
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....onal search of Ibrahim [A1], Indian currency of Rs. 800/- [M.O.3] and Nokia Cell [M.O.4] were seized. Shakila [A2] was searched by Deivarani, the woman sepoy and from her possession, Rs. 2,500/- [M.O.5] was seized. He further deposed that he prepared a Mahazar [Ex.P.6] in the presence of the accused and the two witnesses, viz., Chandran [P.W.5] and Shanmugam, seized the contraband and the accused were taken to the NCB Office. [b] Krishnamoorthy [P.W.1] was examined-in-chief on 25.08.2011 and he was cross-examined by the accused on 04.04.2012. He was asked whether he had taken any steps to search the house of Shakila [A2] on receiving information, since the address of Shakila [A2] was available in Ex.P.1, for which he stated that he did not. This cannot be faulted, because had the Officers searched Shakila's [A2] house even before her arrival to Chennai, she would have got down en route. [c] He was questioned about the identity of the accused, for which, he stated that his informant told him that Shakila [A2] is a Nepali. With the information available in Ex.P.1 relating to the features of Ibrahim [A1] and Shakila [A2], it will not be very difficult to identify them in a Stat....
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....n the Railway Station, there will be floating population and people will be in a hurry either to take a train or go home and they will not readily oblige to stand as witness. Hence, requesting the members of the RPF to stand as witness cannot vitiate the seizure, because the RPF personnel are not depending upon the NCB for their sustenance. As pointed out by the Supreme Court in Zakaullah (supra), every person should be presumed to be an independent person, unless he depends upon the police for his livelihood. 12. Chandran [P.W.5], in his evidence, has stated that he was working as Assistant Sub-Inspector of Police in the RPF and that on 17.02.2009, NCB Officials requested him and Shanmugam to stand as witnesses and shared the information with them and Shanmugam and he agreed and together with the NCB Officials, they waited in Platform No.11 and were watching the movement of passengers; that they noticed a 45 year old man with a 35 year old Nepali lady and that when the duo came towards the RPF security table, they were intercepted by the NCB Officials, who revealed their identity; that the Officers asked the accused as to whether they should be searched before a Gazetted Officer ....
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....isions of Section 50 of the NDPS Act, in this case, it is seen from the evidence of Krishnamoorthy [P.W.1] and Chandran [P.W.5] that when the Officers intercepted and introduced themselves, Ibrahim [A1] came forward to hand over the travel bag [M.O.2] from Shakila [A2] and took out heroin from inside the bag and gave it to the Officers. In the cross-examination of Chandran [P.W.5], he has stated clearly as follows: The free English translation of the aforesaid part of the evidence of Chandran [P.W.5] is that the bag was with Shakila [A2] and Ibrahim [A1] took the bag from Shakila [A2] and handed over the same to the Officers. 16. Though in the three judgments relied upon the by the Defence, the Supreme Court has stated that search of bag would also attract Section 50 of the NDPS Act, in the following 11 judgments, the Supreme Court has held that Section 50 of the NDPS Act will apply only when there is a search of the person and not the bag. (1) Abdul Rashid Ibrahim Mansuri vs. State of Gujarat [2000 (1) Supreme 363] (2) Birakishore Kar v. State of Orissa [JT 1999 (10) SC 350 (3) Gurbax Singh vs. State of Haryana [(2001) 1 Supreme 625] (4) Kanhaiya Lal vs. State of Madhya ....
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....s: "5. .......Further, it is also to be borne in mind that the appellants did not make any complaint before the Magistrate before whom they were produced complaining of any torture or harassment. It is only when their statements were recorded by the trial Judge under Section 313 of the Code of Criminal Procedure that a vague stand about the torture was taken. Under these circumstances, the confessional statements cannot be held to be involuntary. The statements were voluntarily made and can, thus, be made the basis of the appellants' conviction." 21. In A.K.Mehaboob vs. Intelligence Officer, Narcotics Control Bureau [(2001) 10 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 was subjected to torture and the confession was obtained thereafter. 22. That apart, this is not a case based on circumstantial evidence. In other words, the culpability of the appel....