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TMI Blog2017 (12) TMI 637X X X X Extracts X X X X X X X X Extracts X X X X ..... Ex.P33 - Section 57 report. PW-2 has spoken to his not knowing who made the endorsement even while confirming that the Zonal Director had signed the same and the Zonal Director himself has not been called as a witness. Finding that the mandatory provision u/s.42(2) of the Act stands not complied with and finding much more that is wrong with the prosecution case as indicated above, this Criminal Appeal is allowed. The judgment of learned Additional Sessions Judge/Presiding Officer, Special Court for Essential Commodities Act Cases, Coimbatore is set aside. Appellants are acquitted of all charges. First appellant is directed to be released forthwith unless his detention is required in connection with any other case. Fine, if any, paid shall be refunded. - Crl. A. No. 256 of 2014 - - - Dated:- 11-12-2017 - C. T. Selvam, J. For the Appellants : Mr. V. Gopinath, senior counsel for Mr. T. K. S. Gandhi For the Respondent : Mr. N. P. Kumar, Special Public Prosecutor [ NCB cases ] JUDGMENT This appeal arises against judgment of learned Additional Sessions Judge/Presiding Officer, Special Court for Essential Commodities Act Cases, Coimbatore, in C.C.No.100 of 2008 on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sealed with NCB seal No.12. During enquiry, A1 showed box files containing packing cum despatch slips to individual customers and other documents regarding establishment and dealings of the company. All these documents, required for investigation, were listed in Annexure A and seized. The mahazar proceedings were completed at about 20.00 hours on 25.01.2008 on the spot. Then the seizing officer summoned A1 to appear before him to ''Q'' Branch office, 60 Lakshmi Mills Quarters, NGR Street, Coimbatore, for further enquiry. Accordingly, A1 accompanied the officers voluntarily to ''Q'' Branch office and tendered a voluntary statement under section 67 of the Act. He admitted to procurement, possession, using of the residential premises for packing, transportation and illicit export of psychotropic substances out of India to various destinations abroad. Thus, A1 entered into criminal conspiracy for illicit export of psychotropic substances in contravention of the provisions of section 8(c) r/w 22, 23, 25, 27A, 29 and 38 of the Act and Rule 53, 53A and 56 of Narcotics Drugs and Psychotropic Substances Rules, 1985. A1 was placed under arrest at 11.00 hours ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 1,00,000/- for each of the offences u/s.8(c) r/w 23(c) and 29 of the Act. Trial Court directed that sentences run concurrently. There against, this appeal. 4. Heard learned senior counsel for appellants and learned Special Public Prosecutor [NCB cases] for respondent. 5. The present is a case where prosecution alleges illegal export of narcotic drugs and psychotropic substances in commercial quantities on the basis of extraction of contents in two hard disks and the report of an expert in Ex.P148 informing calculation details for each substance. The fact of purchase of the drugs by the accused towards illegal export thereof is sought to be established through confession of A1. Prosecution also relies on evidence of PWs.8, 9, 10 and 11, postal officials and their identification of A1 as the person who effected dispatch of drugs. It is also the prosecution case that custom authorities retained certain parcels of drugs meant for export and, admittedly, the same had not been seized by the investigation officer. 6. Learned senior counsel for appellants contended that the entire prosecution case was flawed. The search conducted on 25.01.2008 was illegal. The recoveries made t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d could be relied upon even if the search had been illegal. Learned Special Public Prosecutor submitted that while Ex.P60 Shri Kannan Departmental Stores (Medical) Cash Bills 236 numbers, Ex.P84 Ledger copies of Shri Lakshmi Pharmacy and Ex.P85 Copies of Bills of Shri Lakshmi Pharmacy issued to D.Ramakrishnan made clear that first accused on behalf of second accused company was purchasing medicines on a routine basis. Ex.P145, the report of Government Examiner of Questioned Documents, contained details in proof of export thereof, the transactions relating thereto, the expenditures incurred by A1 on behalf of A2 company towards conduct of illegal export and the reimbursement received by him. Placement of orders were made through e-mail messages and there were corresponding US and Indian drug names evidencing despatch by air. While the accused carried on operations at America, tax had been paid here. Ex.P148 contained a detailed working of each substance exported. Learned Special Public Prosecutor contended that second accused company had nothing to show by way of local sales and in his Section 313 Cr.P.C. questioning, first accused had admitted purchases. Learned Special Public Pros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elieve any narcotic drug or psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed. (2) Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including the para-military forces or the armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or that any narcotic drug or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o and search any such building, conveyance or place; (b)in case of resistance, break open any door and remove any obstacle to such entry; (c)seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d)detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by him through E-mail from Seethapathy of M/s Chandra Importers Inc, New York, packs it at his office and dispatches to various customers abroad. Intelligence also indicated that for M/s Chandra Importers Inc, New York have opened an account in IDBI Bank, Coimbatore Branch and if Shri Ramakrishnan is enquired, the trafficking of Psychotropic substance to abroad through internet pharmacy can be unearthed. Place : Coimbatore (C Rahakrishna Pillai) Date : 25.01.2008 Superintendent NCB Time : 11.00 Hrs Camp at Coimbatore Submitted to Zonal Director, NCB, SZU, Chennai camping at Coimbatore IO Sundar to take necessary action as discussed. Ex.P1 explicitly reads as information report u/s.41(2) of the NDPS Act, 1985 Sd........ The signatory thereto is C.Radhakrishna Pillai/PW-2. The endorsement found thereon is 'IO Sundar (PW-1) to take necessary action as discussed'. It bears a signature which is informed to be that of Davidson Devasirvatham, said to be a Zonal Director, one who has not been examined. The evidence of PW-2 is that he directly submitted Ex.P1 Information Report u/s.41(2) of the NDPS Act, 1985, to the Zonal Director, Davidson Devasirv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitting that PW-2 had reduced the information received by him in writing and submitted the same to his immediate superior, the Zonal Director. PW-2, in cross, inter alia deposed as follows: '... I deny the suggestion that I had known about the witnesses who had participated in the house search. I deny the suggestion that those witnesses reported to me at 13.00 hours on 25.1.2008. I deny the suggestion that ''P.W.1 did not conduct any house search but myself and Zonal Director Davidson Devasirvatham were only present during the house search''. I do not know about the handwritten endorsement in Ex.P1. The endorsement IO Sundar to take necessary action as discussed was signed by Zonal Director Davidson Devasirvatham but I do not know as to who wrote that endorsement. Ex.P1 was submitted by me to my Zonal Director Davidson Devasirvatham directly at Coimbatore where he was also camping.....' Learned Special Public Prosecutor required this Court to read the above extract as informing that PW-2 and the Zonal Director were present during the search. It is his submission that when so read, it would be seen that PW-2 had complied with Section 42(2) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 42(2) of the Act in reducing the information received by him into writing as also in recording the grounds of his belief that a search warrant or authorisation could not have been obtained by him without affording opportunity for concealment of evidence or facility for the escape of an offender, both of which are to be forwarded to the immediate official superior within 72 hours as required under section 42(2) of the Act. The genuineness of Ex.P1 itself is rendered highly doubtful since the same finds no mention in Ex.P33 - Section 57 report. PW-2 has spoken to his not knowing who made the endorsement even while confirming that the Zonal Director had signed the same and the Zonal Director himself has not been called as a witness. Finding that the mandatory provision u/s.42(2) of the Act stands not complied with and finding much more that is wrong with the prosecution case as indicated above, this Criminal Appeal is allowed. The judgment of learned Additional Sessions Judge/Presiding Officer, Special Court for Essential Commodities Act Cases, Coimbatore, passed in C.C.No.100 of 2008 on 25.04.2014, is set aside. Appellants are acquitted of all charges. First appellant is d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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