THE HON’BLE Mr.JUSTICE D.BHARATHA CHAKRAVARTHY Crl.A.Nos.147 and 356 of 2019 and Crl.M.P.No.7960 and 3992 of 2019 Crl.A.No.147 of 2019: Intelligence Officer Narcotic Control Bureau Chennai Zonal Unit. For Appellant  in                           :     Mr.N.P.Kumar          Crl.A.No.147 of 2019    Special Government Pleader for NDPS Act cases For Appellant in          Crl.A.No.356 of 2019                           : Mr.G.Murugendran                                  For Respondents in                           : Mr.G.Murugendran          Crl.A.No.147 of 2019           for respondent 1 Mrs.Mamta Pandey for respondent 2                                  For Respondent in                            :    Mr.N.P.Kumar          Crl.A.No.356 of 2019    Special Government Pleader for NDPS Act cases

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on  : 23.08.2022

DATED : 16.09.2022

CORAM

THE HON’BLE Mr.JUSTICE D.BHARATHA CHAKRAVARTHY

Crl.A.Nos.147 and 356 of 2019 and

Crl.M.P.No.7960 and 3992 of 2019

Crl.A.No.147 of 2019:

Intelligence Officer

Narcotic Control Bureau

Chennai Zonal Unit

Chennai.                          ..            Appellant

Vs

  1. Rasool Mydeen
  2. Amjath Khan @ Mathaiya ..    Respondents

Crl.A.No.356 of 2019:

Rasool Mydeen                          ..            Appellant

Vs

Intelligence Officer

Narcotic Control Bureau

Chennai Zonal Unit

Chennai – 90.                           ..        Respondent

Prayer in Crl.A.No.147 of 2019 : This Criminal Appeal is filed under

Sections 377(2) and 378 of Code of Criminal Procedure, 1973, to set aside the order of acquittal of A1 Rasool Mydeen from all the charges u/s 8(c) r/w Section 29, 8(c) r/w Section 23(c) and 8(c) r/w Section 28 of the NDPS Act and A2 Amjath Khan @ Mathaiya from the charges under Section 8(c) r/w Section 29, 8(c) r/w Section 23(c), 8(c) r/w Section 21(c), 8(c) r/w Section

28 and 8(c) r/w Section 27A of the NDPS Act and convict the accused A1 Rasool Mydeen under Section 8(c) r/w Section 29, 8(c) r/w Section 23(c) and 8(c) r/w Section 28 of the NDPS Act and A2 Amjath Khan @ Mathaiya for the charges under Section 8(c) r/w Section 29, 8(c) r/w Section 23 (c), 8(c) r/w Section 21(c), 8(c) r/w Section 28 and 8(c) r/w Section 27A of the NDPS Act;

Prayer in Crl.A.No.356 of 2019 : This Criminal Appeal is filed under Sections 374 of Code of Criminal Procedure, 1973, preferred against the judgment made in C.C.No.21 of 2015 dated 11.09.2018 on the file of the Principle Special Judge, Principle Special Court under EC & NDPS Act, Chennai, convicting the appellant under section 8(c) r/w 21(c).

For Appellant  in                           :     Mr.N.P.Kumar

Crl.A.No.147 of 2019    Special Government Pleader

for NDPS Act cases

For Appellant in

Crl.A.No.356 of 2019                           : Mr.G.Murugendran

 

For Respondents in                           : Mr.G.Murugendran

Crl.A.No.147 of 2019           for respondent 1

Mrs.Mamta Pandey

for respondent 2

For Respondent in                            :    Mr.N.P.Kumar

Crl.A.No.356 of 2019    Special Government Pleader

for NDPS Act cases

  COMMON   JUDGMENT

On 03.10.2014, at around 5.00AM, P.W.1, namely Sumit Arya, Intelligence Officer, NCB Chennai received a telephonic information that one Rasool Mydeen, aged thirty years is engaged in drug trafficking and he is coming from New Delhi to Chennai in the Tamil Nadu Express with 1kg of Heroine and he has procured the same in collusion and conspiracy with one Amjath Khan @ Mathaiya, who is also a resident of Ramanathapuram

District, and thereafter is coming to hand over the same to the said  Amjath Khan @ Mathaiya. P.W.1 reduced the said information into writing and after due information and permission from the Superintendent NCB, along with P.W.1, a team was formed and they reached the Central Railway Station around 7.00AM and were waiting along with the witnesses and about 7.30AM, the said Rasool Mydeen was identified and when the identity cards were shown, the said Rasool Mydeen offered himself to be searched by P.W.1 himself and upon further search, he handed over the contraband in two polythene bags from his black color backpack bag. Upon cutting open one of the bags and tested it for Heroine by using Drug Detecting Kit, since the test answered positive, after weighing the contraband and taking the sample of 5gms each, prepared the mahazar, completed the seizure formalities and handed over all the documents and properties to the Investigating Officer P.W.3. Thereupon, P.W.3 effected a formal arrest and sent the accused for remand and also handed over the contraband for testing.

  1. Thereafter, W.6 completed the collection of evidence and filed a complaint against both the accused. The complaint was taken on file as C.C.No.21 of 2015 on the file of the Principle Special Court under EC and

NDPS Act, Chennai and upon appearance and furnishing of copies under Section 207 of the Code of Criminal Procedure, the Trial Court framed five charges against both the accused under Sections 8(c)r/w Section 29, 8(c) r/w Section 21(c), 8(c) r/w Section 28, 8(c) r/w Section 23(c) and 8(c) r/w Section 27A of the Act. Upon being questioned, the accused denied the charges and stood trial. Thereafter, to bring home the charges, on behalf of the prosecution, P.W.1 to P.W.8 were examined and Exhibit P.1 to Exhibit P.71 were marked and M.O.1 to M.O.6 were also produced. Upon being questioned about the material evidences and the incriminating circumstances on record, the accused denied the same as false. Thereafter, no evidence was let in on behalf of the defence. The Trial Court therefore proceeded to hear learned Special Public Prosecutor on behalf of the prosecution and learned counsel for the accused and by a judgment dated 11.09.2018, acquitted the second accused of all the charges and acquitted the first accused for the charges under Sections 8(c) r/w Section 29, 8(c) r/w Section 28 and 8(c) r/w Section 23(c) of the NDPS Act, while convicting him for the charge under Section 8(c) r/w Section 21(c) of the NDPS Act alone and sentenced him to undergo ten years rigorous imprisonment and to pay a fine of Rs.1lakh and in default of payment of fine, to undergo further rigorous imprisonment for a period of two years.

  1. Aggrieved by the conviction for the sole charge as mentioned above, the first accused namely Rasool Mydeen has preferred Crl.A.No.356 of 2019. Aggrieved by the acquittal of the second accused in total and the first accused in respect of the other charges, the Intelligence Officer has filed Crl.A.No.147 of 2019. As such, both the appeals are taken up together and are disposed off by this common judgment.
  2. Heard G.Murugendran, learned counsel appearing on behalf of

the appellant in Crl.A.No.356 of 2019 and for the first respondent in Crl.A.147 of 2019 and Mrs.Mamta Pandey, learned counsel appearing on behalf of the second respondent in Crl.A.No.147 of 2019 and Mr.N.P.Kumar, learned Special Public Prosecutor appearing on behalf of the prosecution in both the appeals.

  1. G.Murugendran, learned counsel would first submit that P.W.6 being the Intelligence Officer, under Section 42 of the NDPS Act, unless an officer is authorised by the Central Government, he is not competent to file a complaint. The Central Government had originally in

S.O.No.763(E) dated 27.09.1989 and thereafter, in S.O.No.3900(E) dated

30.10.2019, had authorised the officers of and above the rank of the Inspectors in the Narcotics Bureau.  Therefore, the Intelligence Officers not being above the rank of the Inspectors, are not entitled to file a complaint. Learned counsel would further submit that from the contradiction in the evidence of P.W.1, it is clear that the information as such received by him is not reduced into writing and therefore, Section 42 of the Act is also not complied with. He would further submit that the accused in this case was not searched before a Gazetted Officer / Magistrate, even though the personal search was done, and therefore, the mandatory provisions contained under Section 50 of the Act has not been complied with. In view of non compliance of Section 42, it goes without saying that the Section 57 of the Act is not complied with.

  1. Learned counsel further pointing out the discrepancies in the evidence of W.1 and P.W.3 would submit that there are material contradictions in respect of the foundational facts to be proved by the prosecution. The Nodal Officer is not at all examined and there is no finding regarding the commercial quantity. He would submit that the entire Central Railway Station is under CCTV surveillance and the production of the CCTV footage is the best evidence possible and in spite of the knowledge which is demonstrated in the cross examination, if the prosecution has not produced the best evidence available, then, the accused should be given the benefit of doubt.
  2. In support of his contentions regarding non compliance of Section 42 of the Act, learned counsel for the appellant relied upon the judgment of the Hon’ble Supreme Court in Kuluttumottil Razak vs State of Kerala1 and

1   2000 4 SCC 465

State of Rajastan vs Babu Lal2. In support of his proposition that Section

50 of the Act is violated, learned counsel relied upon the judgments of the

Hon’ble Supreme Court in State of Rajastan vs Gopal3, K.Mohanan vs State of Kerala4, Dilip and another vs State of MP5He would rely upon the judgment in State of Rajastan vs Parmanand and another6 for the proposition that if the prosecution has failed to comply with the Section 57 of the Act and that when it causes prejudice, the same would be fatal. Learned counsel would rely upon the judgment in Thandi Ram vs State of Haryana7 for the proposition that all the incriminating circumstances should have been properly put to the accused under Section 313 of the Code of Criminal Procedure. Learned counsel relied upon the judgment in Mohan Singh vs Prem Singh and another8 for the proposition that if there was delay in the contraband being produced before the Court then the same would be fatal to the prosecution. Learned counsel relied upon the judgment in State of Rajastan vs Gurmail Singh9 for the proposition that in this case, there is no independent witness and the CISF witnesses has deposed in a

2           2009 14 SCC 215 3    1998 8 SCC 449 4    2000 10 SCC 222 5    2007 1 SCC 450 6    2014 5 SCC 345 7    2000 1 SCC 318 8    2002 10 SCC 236 9    2005 3 SCC 59

manner so as to contradict the other witnesses and that therefore, in the absence of the independent witnesses, the seizure should not be held to be proper. Learned counsel relied upon the judgment in Krishan Chand vs State of Himachal Pradesh10, more specifically paragraph 24 to 26 for the proposition that the expert evidence in this case as unreliable. Learned counsel also relied upon the judgment of the Hon’ble Supreme Court in Tomaso Bruno and another vs State of Uttar Pradesh11.

  1. Per contra, Mr.N.P.Kumar, learned Special Public Prosecutor would submit that, in this case, Section 42 has been complied with as the information has been reduced into writing and is produced before the Trial Court as Exhibit P.1. The same was duly forwarded to the superior officer and he has also made an endorsement in the same and therefore, Section 57 of the Act is also complied with. In this case, the contraband is seized from the bag and therefore, the mandate of the Section 50 of the Act need not be complied. The learned Special Public Prosecutor would submit that the cumulative reading of the evidence of P.W.1, P.W.3 and P.W.5, it will not reveal any material contradiction, but only the minor discrepancies which

10 2018 1 SCC 222 11 2015 7 SCC 178

will not entitle the accused for acquittal. He would submit that the

Intelligence Officer is competent and is specifically authorised by the Central Government in this regard. He would submit that it is for the prosecution to bring home the charges and it is not necessary at all times that the CCTV footage should be produced when the prosecution has proved the charges, otherwise,  by examination of witnesses and production of documents. Therefore, he would submit that the Trial Court has rightly convicted the first accused for conscious possession of the contraband for the offence under Section 8(c) r/w Section 21(c) of the NDPS Act. He would submit that the Trial Court has issued only minimum sentence and therefore, the same does not call for any interference.

  1. Arguing further on the appeal against acquittal, he would submit that apart from the confession statements, the prosecution has also produced the call details between the first and the second accused by which it is proved that on the day of commission of offence, there has been calls back and forth between the accused and therefore would submit that the prosecution in this case has proved the offences even as against the second accused beyond reasonable doubt and the arrest of the second accused at the Airport and recovery of the tickets, which is also produced, all clearly prove the offence against the second accused and as such the other charges against the first accused should also be held as proved. Therefore, he prayed that the appeal filed by the first accused to be dismissed and the appeal filed by the Intelligence Officer be allowed.
  2. Mamta Pandey, learned counsel appearing on behalf of the second accused in Crl.A.No.147 of 2019 would submit that, in this case, except the confession statement, there is no other material to connect the second accused. As a matter of fact, the Constitutional Bench of the Hon’ble Supreme Court of India in Tofan Singh vs State of Tamil Nadu[1] has held that even the NCB Officers are deemed to be Police Officers and therefore, any statement given before them would be hit by Section 161 of the Code of Criminal Procedure and therefore, now the Constitutional Bench has answered the reference in favour to the second accused, nothing else remains to be decided in this case and the appeal against acquittal is to be dismissed.
  3. She would further submit that even though some of the call details have been produced admittedly, the sim card was not standing in the name of the second accused and the prosecution has not done anything to prove that the said sim card is used by the second accused or the second accused had any connection with the person, in whose name the sim card was standing. Even the tower location was not obtained and therefore, the prosecution has not done anything by producing the call details. She would submit that the said fact also has been dealt with in detail by the Trial Court while acquitting the accused.
  4. I have considered the rival submissions made on behalf of either side and perused the material records of this case.
  5. As far as the first contention of G.Murugendran, learned counsel is concerned, it is useful to extract the S.O.763(E), which reads as follows:

S.O.763(E):- In exercise of the powers conferred by clause (d) of sub-section (i) of Section 86A of the Narcotic Drugs and Psychotropic Substance Act, 1985 (61 of 1985), the Central Government hereby authorizes the officers of and above the rank of Inspector in the Department of Customs, Central Excise, Narcotics, Revenue Intelligence, Central

Economic Intelligence Bureau and the Narcotics Control Bureau under the Ministry of finance, Government of India for filing of complaints relating to an offence under the said Act before Special Courts.” similarly, S.O.3900(E) also reads on the same lines, which is as follows:

S.O.3900(E):- In exercise of the powers conferred by clause (d) of Sub-Section (1) of Section 36A of the Narcotics Drugs and Psychotropic Substances Act, 1985 (61 of 1985) and in supression of the notification of the Government of India in the Ministry of Finance, Department of Revenye number S.O.763(E), dated 27th Sepctember, 1989, published in the Gazette of India, extraordinary, Part II, Section 3, Sub-Section (ii), except as respects things done or omitted to be done before such suppression the Central Government, hereby authorises the officers of and above the rank of inspectors in the Central Board of Indirect Taxes and Customs, Central Bureau of Narcotics, Directorate of

Revenue Intelligence, Central Economic Intelligence Bureau and of and above the rank of Junior intelligence Officer in Narcotics Control Bureau for filling of complaints relating to an offences under the said Act, before Special Courts.”

Therefore, it is clear on the plain reading of the S.O that the officers of the rank of Inspectors and above the rank of inspectors, both are authorised for filing complaint. Learned counsel’s submission that the above S.O. would only mean any officer above the rank of Inspector, is on the face of it unacceptable and therefore, the Intelligence Officer, being in the rank of the Inspectors and having been duly authorised, are fully competent to file a complaint and therefore, the submission of the learned counsel for the first accused in this regard is rejected.

  1. Learned counsel for the first accused, by pointing out the discrepancies in the oral testimony of W.1 that he answered that the person who called him was available in the office when he entered the office at 5.00AM and therefore, he would not have received the Exhibit P.1 statement over phone and therefore, the correct information which is obtained is not reduced into writing and therefore, Section 42 is violated. Cumulative reading of the entire Exhibit P.1 and the answer given in the cross examination, can at best be termed as discrepancy in the evidence of P.W.1. The person had given the information over phone and he also thereafter came to the office in person and thus, when the said information is reduced into writing and is duly submitted to the superior officer, it cannot be said that there is violation of Section 42 of the Act. Accordingly, when Exhibit P.1 has been reduced into writing and the same has been forwarded to the superior officer and when the superior officer had also made an endorsement on the same, authorising P.W.1 to take action, I hold that the mandatory provision under Section 42 of the NDPS Act is complied with.
  2. The next submission of the learned counsel that the mandatory provision under Section 50 of the NDPS Act is not complied with is concerned, already by relying upon the latest ruling of the Supreme Court of India in Dayalu Kashyap vs The State of Chhattisgarh13, this Court itself in A.No.831 of 2019, after considering all the other earlier

pronouncements had taken the view that even if there is a personal search, if the recovery of the contraband is not from the person of the accused, then the rigor of Section 50 will not apply. Therefore, the submission of the learned counsel that Section 50 is not complied with is without any substance. Again for the same reasons mentioned supra for non compliance of the Section 42 of the Act, the argument of the learned counsel for the first accused in respect of Section 57 of the Act is also fallacious in as much

13 2022 Live Law (SC) 100

as the said provision is duly complied with.

  1. Learned counsel for the first accused pointed out the contradictions in the evidence of W.1, P.W.3 and P.W.5. The

contradictions are regarding explaining the mandate of Section 50 in Tamil, which has been held to be not mandatory and as such is not material in nature. The other contradictions are in the nature of the time of P.W.1 entering his office, again P.W.3 coming to Central Station from the office and reaching back to the office, etc. The same are relating to the  details of the process of investigation and after efflux of time, it is natural that there will be discrepancies / inaccuracies. But, the same cannot be taken as material contradiction. Even in respect of the independent witnesses, being the Uniform Forces employed in the Central Railway Station, the material contradiction is alleged only with reference to the compliance of Section 50. Again, the same has been held to be not mandatory and therefore, I hold that the discrepancies pointed out by the learned counsel are not material in nature and accordingly stand rejected.

  1. Though the prosecution could have also produced the CCTVfootage from the Central Railway Station, the very absence by itself will not entitle the accused for acquittal. The principle that non-production of the best evidence in the case of the prosecution could not be employed, as the CCTV cannot be said to be a best evidence when the seizing officer and the witnesses have deposed and the mahazar is produced and the CCTV footage can at best be termed as a corroborative material. Therefore, the mere non-production thereof will not entitle the appellant for an acquittal. Thus, I am unable to persuade myself to uphold the very many contentions made on behalf of the first accused in this case.
  2. On the contrary, the contraband being of a commercial quantity, that is 1kg of Heroine, was duly recovered and from the evidence of W.1 the seizing officer, P.W.2 the chemical analysis expert, P.W.3 the other Intelligence Officer who proceeded to conduct further investigation, P.W.4 the superior officer, P.W.6 the complainant, P.W.7 the Sub-Inspector of Railway Police Force who stood as an independent witness for the seizure, the seizure of the contraband has been duly proved and the mahazar in Exhibit P.2 clearly demonstrated the seizure and accordingly, the conscious possession of the contraband by the first accused is proved beyond reasonable doubt. In that view of the matter, the various decisions relied upon by the learned counsel would not apply to the fact situation of the instant case. Therefore, I hold that the Trial Court has rightly convicted the first accused for the offence under Section 8(c) r/w Section 21(c) of the Act.
  3. Now, coming to the acquittal of the second accused and acquittal of the other accused in respect of the other charges, it may be seen that the entire recovery is from the first accused. There are only two materials against the second accused in this case. First is the statement recorded by the NCB Officers, which now stand inadmissible in view of the judgment of the Hon’ble Supreme Court of India in Tofan (supra). The only other evidence to connect the second accused with the offence is the seizure of the Airplane ticket and the production of the call details. As far as the call details is concerned, the Trial Court has duly considered the same and has arrived at the finding that the prosecution miserably failed in this case to prove that the alleged telephone number, which stood in the name of a third party is being used by the second accused and the identity of the third party neither ascertained nor the said third party was examined to prove the action of the second accused. Even the tower details were not taken so as to at least connect with the Tiruchi Airport, where the second accused has said to have been arrested.
  4. The Trial Court has also noted down the discrepancy, manner of arrest and timing of arrest of the second accused and has given a finding of acquittal. It cannot be said that the view of the Trial Court is not at all a possible view and therefore, in the appeal against acquittal, especially when the materials are very scarce, this Court cannot reverse the findings of acquittal into one of guilt and therefore, once there is no material to connect the second accused, the other offences against the first accused also stand not proved and accordingly I find no infirmity in the judgment of the Trial Court in acquitting the second accused and also acquitting the first accused in respect of the other offences.
  5. Accordingly, the appeal against acquittal filed by the Intelligence Officer fails. In view thereof, both the criminal appeals shall stand dismissed.

Index:Yes/No          16.09.2022

Speaking/Non-Speaking Order drm

  D.BHARATHA CHAKRAVARTHY,   J.

drm

To

  1. Intelligence Officer

Narcotic Control Bureau     Chennai Zonal Unit     Chennai – 90.

  1. The Principle Special Judge

Principle Special Court under EC & NDPS Act, Chennai.

  1. The Public Prosecutor, High Court of Madras.

Crl.A.Nos.147 and 356 of 2019 and Crl.M.P.No.7960 and 3992 of 2019

16.09.2022

[1] 2014 6 SCC (Cri) 196

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