TaxTMI 
TaxTMI 
2002 (1) TMI 83
X X X X Extracts X X X X
X X X X Extracts X X X X
....the orders for sending Senna Leaves and Senna Pods from a firm by name M/s. Tai Ping Trading Company in Hong Kong in the year 1987. Accordingly, he sent 17 bales of Senna Leaves and 6 bales of Senna Pods to the Company at Hong Kong through shipment. While sending the said shipment, A1 kept concealed amongst Senna Pods 6 kilos of ganja in six bales. (c) Thereafter, A1 sent a letter dated 8-6-1987 to the Hong Kong Company stating that along with the bales of leaves and pods he has sent a new special herb which can be sold at high cost and asking them to sell it and get the commission and send the balance amount to him. (d) The Hong Kong Customs Authorities checked the consignment and recovered the 6 kgs. of ganja. They sent the same to the Laboratory and obtained the report stating that the same is Cannabis (ganja). On coming to know that the same was sent to the Hong Kong Company by the Indian Company situated in Tuticorin, the Hong Kong Customs Authorities sent a report to the Indian High Commission at Hong Kong. On receipt of this report, the Secretary of the Indian High Commission at Hong Ko....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed (A1 to A3) before the Court concerned." 3.During the trial, A3 died. Therefore, the case against him got abated. The trial went on only as against A1 and A2. 4.During the course of trial, P.W. 1 to P.W. 8 were examined, Exs.P1 to P57 were filed and M.Os.1 to 3 were marked. 5.During the questioning under Section 313 Cr.P.C., both the accused merely denied their complicity in the crime. The trial Court, ultimately, acquitted the accused. This is under challenge before this Court. 6.Mr. P.N. Prakash, the learned Special Public Prosecutor would argue at length by citing very many decisions and contend that every one of the reasonings given by the trial Court for acquitting the accused is not only against law but also perverse. 7.Mr. M. Chinnasamy, the learned counsel appearing for the respondents 1 and 2 would reply to the said contentions. But however, when the matter was adjourned to various dates for giving opportunity to make further submissions, the counsel on record M/s. Gopalakrishna Raju and M. Chinnasamy were not present. Thereafter, one Mr. Kasi Rajan, Counsel entered appearance on behalf of the respondents 1 and 2. But, when the matter was posted, he was al....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Magistrate. 13.The above reasonings, in my view, are all quite irrelevant and perverse and as such, it has to be held that the trial Court due to the erroneous approach has misread the evidence causing flagrant miscarriage of justice. 14.When there are materials available to show that the consignment was sent by A1 and the same was found to contain ganja according to the report of Hong Kong Laboratory, and the same was admitted by the accused, it cannot be concluded that the accused would not have dared to conceal ganja and send it to the importer as the accused exported the same for the first time. This conclusion is without any basis. The materials available on record would show that A1 exported Senna Leaves and Senna Pods and intimated the same to Hong Kong party through two letters Exs.P13 and P21. Therefore, this finding is without basis. As a matter of fact, the trial Court found that M/s. Ramesh and Babu is a Company exporting Senna Leaves and Senna Pods run by A1. It is also found by the trial Court that the consignment in question was exported by the accused alone. Under those circumstances, the factum of recovery of 6 kilos. of ganja from the consignment can be hel....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at 6 kilos of ganja was purchased from A3 in his confession. Therefore, on 7-10-1987, A3's house also was searched and the ganja was seized. From him, Ex. P31 confession was recorded. When they were produced before the Magistrate on 8-10-1987 for remand, the accused did not make any complaint of ill-treatment or retracted their statements. They retracted the statements only on 30-10-1987 belatedly. 19.Even though the said statement is retracted, the same can form the basis for conviction as laid down in K.I. Pavunny v. Assistant Collector (Head Quarter), Central Excise Collectorate, Cochin [1997 (90) E.L.T. 241 (S.C.) = JT 1997 (2) S.C. 120]. 20.The reading of Ex.P28, the confession given by A1 would show that he gave details of wealth which are specially known to him and which are so connected with the consignment in question. Furthermore, on the basis of the said statement, the involvement of A2 and A3 were also detected. Under those circumstances, the confession cannot be ignored merely because they have been retracted. 21.In this case, the confession given by A1 not only would give the minute details about the act done by him but also is corroborated by the materials a....
X X X X Extracts X X X X
X X X X Extracts X X X X
.....S. Act, which deals with the punishment for contravention in relation to Cannabis and illegal export of the narcotic drugs from India. 28.With the above observation, the appeal is partly allowed and the order of acquittal is set aside in respect of A1 alone. The matter is remitted back to the trial Court for giving opportunity to the first accused in regard to the question of sentence. Therefore, the trial Court is directed to summon the first accused and question him before imposing sentence and after hearing pass an order in accordance with law. Even during the pendency of this appeal before this Court, as it is pointed out that the first accused was evading service, the trial Court may take suitable steps to secure the presence of the first accused for complying with the directions given by this Court. 29. [M. Karpagavinayagam, J.]. - The case in question was tried by the learned Principal District Judge, Tirunelveli in S.C. No. 245 of 1989 and the same ended in acquittal. As against the said judgment, the complainant filed an appeal before this Court in Crl. A. No. 417 of 1991 and the said appeal was partly allowed convicting the first accused alone by the judgment, date....