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2017 (12) TMI 1447 - HC - Indian LawsSeizure of goods - contraband and other documents - Held that - Admittedly, in this case, the contraband was not seized pursuant to the search of the person of the accused. It is the specific case of the prosecution that the contraband was seized from amongst churidar materials kept inside the carton M.O.13 in Rajeshwar Textiles. - The provisions of Section 50 of the NDPS Act will apply only when the contraband has been recovered from the search of the person of the accused and not from a bag or box, etc. There can be no pale of doubt that if an illicit article has been recovered from the search of the person of the accused in violation of Section 50 of the NDPS Act, the recovery will become suspect - 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. This Court is unable to countenance this submission, because Exs.P.4 to 10 and M.Os.1 to 7 are not illicit articles per se under the NDPS Act. The possession of these exhibits and material objects, viz., visiting card, delivery receipt, mobile phones, Indian currency, US dollars and Sri Lankan currency will not attract punishment under the NDPS Act, because they do not come within the definition of a Narcotic drug or a psychotropic substance. These documents and material objects will assume significance only as corroborative pieces of evidence and mere possession of that will not entail conviction under the NDPS Act. When a case under Section 420 IPC/135 of the Customs Act is committed to the Special Court, the question is, what procedure the Special Court should follow, whether the procedure under Chapter XIX or the procedure under Chapter XVIII of the Code? This has been answered by Section 44(1)(d) of the PMLA. Section 44(1)(d) states that the trial of the scheduled offence and the trial of the money-laundering case shall be conducted in accordance with Chapter XVIII of the Code. Such a dichotomy cannot happen under the NDPS Act, because the offence under the NDPS Act is not dependent upon the commission of an offence under another enactment, whereas, the offence under Section 3 of the PMLA is dependent upon the commission of an offence mentioned in the schedule to the PMLA. Hence, the comparison is misconceived. This Court does not find any infirmity in the conviction of the appellants by the Special Court warranting interference. As to the sentence, the trial Court has imposed the sentence of 14 years for each charge against the appellants. Interest of justice will be served if the sentence is reduced to 10 years Rigorous Imprisonment, that being the minimum for the convicted offences - the sentence imposed in C.C.No.4 of 2013 by the II Additional Special Court for NDPS Cases, Chennai is reduced to 10 years Rigorous Imprisonment. Appeal disposed off.
Issues Involved:
1. Framing of charges and trial procedure. 2. Admissibility and voluntariness of confession statements. 3. Compliance with Section 50 of the NDPS Act. 4. Non-examination of independent witnesses. 5. Non-examination of corroborative witnesses. 6. Application of Sections 35 and 54 of the NDPS Act. 7. Admissibility of Call Detail Records (CDRs). Issue-wise Detailed Analysis: 1. Framing of charges and trial procedure: The appellants argued that the Special Court should not have framed charges first and tried the accused under Chapter XVIII of the Code, but should have tried them under Chapter XIX-B, as the case was instituted on a complaint by Revenue Officials. The court rejected this argument, stating that Section 36-A(1)(d) of the NDPS Act allows the Special Court to take cognizance of an offence upon a complaint made by an authorized officer without the accused being committed to it for trial. The court also referred to the legal fiction in Section 36-C, which deems the Special Court to be a Court of Session. 2. Admissibility and voluntariness of confession statements: The appellants contended that their confession statements were obtained under coercion and should not be relied upon. The court examined the evidence of Dr. K.S. Gowrishankar [D.W.1], who noted injuries on the accused, but found that these injuries were two days old and not fresh. The court also noted that the accused did not complain of ill-treatment when produced before the Magistrate or the Medical Officer. The court held that the confession statements were voluntary and truthful and could be relied upon along with the seizure of the contraband. 3. Compliance with Section 50 of the NDPS Act: The appellants argued that there was a violation of Section 50 of the NDPS Act, as they were not properly apprised of their right to be searched in the presence of a Gazetted Officer or a Magistrate. The court analyzed various judgments and concluded that Section 50 applies only when the contraband is recovered from the person of the accused. In this case, the contraband was seized from a carton in Rajeshwar Textiles, and not from the person of the accused. Therefore, the court held that there was no violation of Section 50. 4. Non-examination of independent witnesses: The appellants argued that the prosecution's failure to examine independent witnesses, such as the mahazar witnesses Sakthivel [D.W.2] and Kumar, was fatal to the case. The court noted that the prosecution had made efforts to serve summons to these witnesses, but they were not available. Sakthivel was examined as a defense witness, and his testimony was found to be unreliable. The court held that non-examination of independent witnesses was not fatal to the prosecution case. 5. Non-examination of corroborative witnesses: The appellants contended that the failure to examine Mahendar, the Office Boy who brought the consignment from Anmol Transport to Rajeshwar Textiles, and V. Chandrakumar, Manager of NST Palace, was fatal to the case. The court found that Mahendar's examination would have only shown that he brought the consignment, and Chandrakumar's examination would have only shown that Madhan [A1] took a room in NST Palace. The court held that non-examination of these witnesses was not fatal to the prosecution case. 6. Application of Sections 35 and 54 of the NDPS Act: The court noted that Sections 35 and 54 of the NDPS Act create a presumption of culpable mental state and possession of illicit articles, respectively. The prosecution had established the seizure of the contraband in the presence of the accused, and the accused had failed to disprove the prosecution case. The court held that the presumption under Sections 35 and 54 applied, and the accused were in conscious possession of the contraband. 7. Admissibility of Call Detail Records (CDRs): The appellants argued that the CDRs were inadmissible as they did not bear the certification under Section 65-B of the Evidence Act. The court noted that the CDRs were obtained before the law was changed by the Supreme Court in Anvar P.V. v. Basheer and others [(2014) 10 SCC 473], and therefore, the DRI could not be blamed for not collecting the required evidence. The court held that the CDRs were inadmissible, but this did not affect the overall prosecution case. Conclusion: The court found no infirmity in the conviction of the appellants. However, the sentence was reduced from 14 years to 10 years Rigorous Imprisonment, considering it to be the minimum for the convicted offences. The appeal was dismissed with this modification in the sentence.
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