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TMI Blog2017 (4) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of Mumbai. One T.Soloman, Accused no.3 , S.Raj, Accused no.4, Sam Sundar Singh, Accused no.5 , K. Sudalaiandi, Accused no.7 and V. Pandi were said to be residents of Tuticorin. R. Muniswamy, Accused no. 6 was to be a servant in the house of the sister of accused no.1 and Thasthagir, Accused no. 9 were said to be residents of Thiruvidankodu in Kanyakumari district. Sayed Hayat Saab, accused no.8, was said to be a resident of Lokapur. Mohammed, Accused no.10, was said to be a resident of Mandsaur. It was alleged that all the above accused had entered into a criminal conspiracy during the period September - December 1999 and in pursuance of the same and on the instructions of Accused no.1, Accused no. 10 is said to have sold about 30 kgs of Heroin and had transported the said drug to Lokapur, where accused no.2 having received the consignment had secreted the same in the house of his mother-in-law pending further transportation to Tuticorin via Bangalore and onwards to Srilanka, by boat. In this regard Accused no.3 and 9 are said to have arranged a lorry bearing registration no. TN-69-2967 belonging to accused no. 11 - who was to receive the drug at a spot about 17 kms. ahead of T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and had got marked 144 documents and 101 material objects. On a consideration of the evidence the court below had framed the following points for consideration : "1. Whether the prosecution proved beyond reasonable doubt that accused No.10 manufactured heroin and thereby sold 29.355 kgs to accused No.1 and thereby committed the offence punishable under Section 8(c) read with Sections 21, 28 N.D.P.S. Act, 1985? 2. Whether the prosecution further proved beyond all reasonable doubt that there was a conspiracy entered into between accused Nos.1, 3 to 11 with absconding accused No.2 during September 1999 to December 1999 at Mandsaur, Bombay, Lokapur, Bangalore, Chennai and Tuticorin to sell and thereby to purchase 29.355 kgs of heroin and after secreting it in the mother- in-law's place of accused No.2 at Lokapur and thereby transport it illegally by way of ambassador car KA-23-M-3773 till the appointed spot at Tumkur and from there through lorry TN-69-2967 to Tuticorin via Bangalore and from it through coast it is to be exported to Srilanka and thereby the said accused have committed the offence punishable under Section 8(c) read with Section 21, 28, 29 of the N.D.P.S. Act, 1985 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n from the informant had reduced the same into writing and had submitted the same to his superior, PW-13. Hence there was due compliance with the statutory mandate. Reliance is placed on the following authorities in this regard. 1. Gyan Chand and Another vs. State and Another (2005 Crl.L.J. 3228) 2. State of Maharashtra vs. Jayantilal Modi and Others (2010) 15 SCC 157 3. Ravindran alias John vs. Superintendent of Customs (2007) 6 SCC 410 4. State of Haryana vs. Jarnail Singh and others (2004) 5 SCC 188 It is emphasized and candidly admitted that the written information given by the informant could not be produced before the court below in view of a genuine apprehension that it may result in the very life of the informant being exposed to risk, on account of a possible retaliation by persons seeking to protect the accused. This valid justification, it is contended, has been unfairly discarded by the court below. The circumstance that the written information recorded in the first instance having been shown to his Superior Officer by the informant and the same having been produced before the court, is negated and hence the trial court had committed a grave error. It is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 12.12.1999 and not on 13.12.1999 as was demonstrated from the evidence and that this was on account of the said lorry having broken down on 12.12.1999, the event had been postponed by a day, is a surmise of the trial court and without any proof of the said lorry having broken down at all. The learned Special Public Prosecutor thus seeks that the appeal be allowed and the judgment of the trial court be set aside and the accused punished appropriately. 4. Per Contra, the learned Senior Advocate Shri B. Kumar appearing for the counsel for the respondents no. 1 to 5, 7, 8 & 10 would contend that the trial court has discussed at length and assigned reasons in coming to the conclusion as to how the non-production of the original of Exhibit P-1 is fatal to the case as being in violation of Section 42 of the NDPS Act, at paragraphs 21 to 28 of its judgment. It is pointed out that this is the settled position of law. Further it is also pointed out that it has been elicited from the prosecution witness, that the original document was kept in the office of the appellant and hence there was no impediment to produce the same at the relevant stage. It is further pointed out that it is not i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bai of Pakistan or Mohammed of Madhya Pradesh, accused no.10. It is on record that Accused no. 10 was available as a remand prisoner, but yet his statement has not been recorded and hence the same is fatal to the case of the prosecution. Further, except the reference to the phone numbers it is not the case of the prosecution that any such phones were seized from the possession of the accused when the lorry and car were intercepted, as stated above. There is no explanation as to the existence or otherwise of such phones. It is further contended that the transcript produced by the prosecution at Exhibit 125, only indicates the incoming and outgoing calls pertaining to four cell phones. The latest entry in the said transcript was of October 1999, whereas the incident is as on 12.12.1999. Further, the said document was not admissible in evidence, in the absence of an endorsement by the person who was maintaining the computer server from which such information had been retrieved. This was a mandatory requirement of law, in terms of Section 65 B of the Evidence Act. Exhibit P-124 & 126 which are similar documents suffer from the same infirmity. It is also pointed out that the evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant, PW-1, an Intelligence Officer of the Narcotics Bureau was in his office at 9:00 PM on 11.12.1999, a Saturday, which in itself is unusual, when he had received information, in writing, from a person, whose identity is not disclosed. The said information was in turn said to have been reduced to writing by him and thereafter forwarded to his immediate superior, a Superintendent, examined at the trial as PW-20. The said document so forwarded is marked as Exhibit P-1. It is stated in evidence by PW-1 that the information received by him in writing was kept in a sealed cover in the office of the NCB. It is also stated that it was not in his custody. Further, that there were other officers present in the office at that point of time (PW-2, 4 and 16). The emphasis on the circumstance that normally, the office of the NCB is closed on Saturdays and Sundays and the unusual presence of the officers on that Saturday not being explained or disclosed is indeed curious. Thus the contention as to the document at Exhibit P-1 being a false and concocted document cannot be ruled out. More importantly, the original information said to have been received in writing by PW-1 is not brought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l consideration of the evidence, the theory of criminal conspiracy by the accused, who were from several towns and cities is not established with any degree of certainty. Except reliance placed on record of telephonic calls said to have taken place between them, there is little else that can be called as being incriminating evidence. Even that record, as rightly contended by the respondents, does not squarely implicate the accused. It is also a fact that no phones are recovered from any of the accused to establish that they had in fact used the same. The record produced also did not establish that the phone or the SIM card was procured in the name of the accused. The transcript of the phone call records also could not be marked in evidence in the absence of compliance with Section 65 B of the Evidence Act, 1872, as held by the Apex Court in PV Anwar v. PK Basheer, (2014) 10 SCC 473. Further, to establish the theory of criminal conspiracy, it was necessary for the prosecution to establish the link and active participation of all persons concerned. In other words, it is alleged that one Munna of Srilanka was the person who is said to have arranged the sale of the contraband in questi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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