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TMI Blog2017 (4) TMI 1018X X X X Extracts X X X X X X X X Extracts X X X X ..... ement of the accused made under Section 67 of the NDPS Act is admissible in evidence. In the above circumstances, the prosecution has clearly established the conspiracy between the accused to commit the offence. Hence, the findings of the Court below that a further investigation is required in respect of the confessional statement given by the accused to prove the conspiracy is not correct. Hence, it is liable to be set aside. In the result, the Criminal Appeal is allowed and the order of acquittal of respondents for the offence under Section 8(c) r/w 29 of the NDPS Act is set aside and both the accused are convicted for the offence under Section 8(c) r/w 29 of the NDPS Act.The Registry is directed to issue notice to the respondents/accused for questioning them regarding sentence, and post the matter on 05.06.2017 for questioning the respondents. - Crl. A. No. 1351 of 2004 - - - Dated:- 17-4-2017 - V. Bharathidasan, J. For Appellant : Mr.N.P.Kumar Special Public Prosecutor for NDPS For Respondents : Mr.S.N.Thangaraj Legal Aid Counsel JUDGMENT This appeal has been preferred against an order of acquittal passed by the learned Additional Judge, Special Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure as contemplated under Section 50 of the NDPS Act seized the same. Subsequently, necessary summons were issued to the accused and both the accused appeared before the authorities, and A-1 voluntarily given a statement which was recorded by P.W.5[Ex.P31]. Then P.W.5 arrested the first accused. A-2 appeared before P.W.6 and he has also voluntarily given statement Ex.P44. Then, P.W.6 arrested the second accused after following the legal formalities. P.Ws.5 and 6 searched the another house of A-2 at Palavakkam, where no incriminating materials were seized. Then, the seized contrabands were sent for chemical examination and the chemical examination, found presence of Di-Actyle morphine, a narcotic drug and the chemical report was marked as Ex.p23. Then the Manager, Indian Airlines, Madras was examined, Flight Manifesto was also recorded and after completing the investigation, P.W.1 has filed the charge sheet before the Special Court for NDPS Act cases. 4. Considering the above materials, the Trial Court framed charges as detailed above and the accused denied the same as false. In order to prove the case of prosecution, as many as 11 witnesses were examined, 52 documents were exhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Their defence was a total denial. They have examined one Noor Mazharia as D.W.1 and no exhibits were marked. 7. Considering the above materials, the trial Court convicted first accused/first respondent under Section 8(c) r/w 21(c) of NDPS Act, and sentenced him to undergo ten years rigorous imprisonment and to pay a fine of ₹ 1,00,000/- (Rupees one lakh) in default to undergo rigorous imprisonment for one year and found the second accused/second respondent guilty and convicted him under Section 8(c) r/w 21(b) of NDPS Act and sentenced him to undergo two years rigorous imprisonment and to pay a fine of ₹ 15,000/- (Rupees fifteen thousands) in default to undergo rigorous imprisonment for six months. The trial Court acquitted both the accused/respondents for the offence under Section 8(c) r/w 29 of the NDPS Act. Now, challenging the order of acquittal in respect of charge under Section 8(c) r/w 29 of NDPS Act, the appellant filed the present appeal. 8. Even though notice was served on the respondents 1 and 2 and there was no representation on behalf of the respondents. Hence, this Court, by order dated 19.12.2016, appointed Thiru.S.N.Thangaraj, learned Advocate as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused there is no other materials available on record. Apart from that there is no investigation regarding the confession made by the accused and since the confession was retracted by the accused while they were questioned under Section 313 Cr.P.C., the retracted confession cannot be used against the respondents/accused and the Court below rightly considered the same and acquitted the accused for the charge of conspiracy. In the above circumstances, there is no reason to interfere with the order of acquittal passed by the Court below. In support of his contention, the learned counsel appearing for the respondents relied upon a judgment of the Hon'ble Supreme Court in TOFAN SING Vs. STATE OF TAMILNADU reported in 2013(12) SCALE and contended that the Hon'ble Supreme Court doubted the ratio laid down in KANHAIYALAL (supra) case and the matter has been referred to the Larger Bench. In view of the same, the judgment of the KANHAIYALAL (supra) case cannot be followed. 12. I have considered the rival submissions. 13. So far as the charge under Section 8(c) r/w 29 of the NDPS Act, the prosecution case was that the respondents/A1 and A-2 along with one Inticab, who was arraye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 116 of the Indian Penal Code, be punishable with the punishment provided for the offence. (2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which (a) would constitute an offence if committed within India; or (b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India 15. It is a settled principle of law that a criminal conspiracy is an agreement between two or more persons to do an illegal act or legal act by illegal means. If the agreement is not an agreement to commit an offence, it does not amount to conspiracy unless it is followed up by an overt act done by one or more persons is furtherance of the agreement. The offence is complete as soon as there is meeting of minds and unity of purpose between the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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