Narcotic Cases - Madras High Court 2003

http://www.judis.nic.in/chennaijudis/qrydisp.asp?
tfnm=1894
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28/07/2003
CORAM
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
C.A.No.497 of 2002
Murugan .. Appellant
-Vs-
State
Inspector of Police
NIB/CID Thuthukudi .. Respondent
This criminal appeal is preferred under S.374 of The Code of Criminal

Procedure against the judgment of the Special District and Sessions Judge,
Madurai (Court constituted for N.D.P.S. Act cases, Madurai) made in C.C.No.33
of 1999 dated 10.9.2001.
!For Appellant : Mr.T.Munirathinam Naidu
^For Respondent : Mr.O.Srinath,

Government Advocate (Crl. Side)
:JUDGMENT
The sole accused, who stood charged, tried and convicted and sentenced
to undergo R.I. for 10 years under S.8(c) r/w 18 of the N.D.P.S. Act and to
pay a fine of Rs.1.00 lakh and in default to undergo R.I. for 2 years has
brought forth this appeal.
2. Short facts necessary for the disposal of this appeal are:
P.W.6 Beski, Sub Inspector, attached to NIB/CID, on receipt of an
information on 15.10.1998 at about 10.00 A.M. as to the transport of narcotic
substance, reduced the same into writing and informed the same by telephone to
P.W.7 Jeyakumar, Inspector. He accompanied by P.W.1 H.Velusamy, Village
Administrative Officer and his menial proceeded to the Central Bus Stand,
Tuticorin, where two persons were identified in front of Paul Sornam Lodge.
Of those two persons, the appellant/accused was one. In the presence of the
witnesses, they were enquired. The appellant and the other person informed
that they were in possession of two kilos of abin each. They were informed of
their right that they could be searched before a Magistrate or before a
gazetted Officer, and the same was replied not necessary. Under such
http://www.judis.nic.in/chennaijudis/qrydisp.asp?tfnm=1894 (1 of 5)2/18/2004 5:56:46 AM

http://www.judis.nic.in/chennaijudis/qrydisp.asp?tfnm=1894
circumstances, in the presence of the witnesses, the appellant and the other
person produced the parcels what they kept secret in their waist, and the
parcel produced by the appellant was unfolded. It was weighed in the presence
of the witnesses. The samples were taken, and they were given mark, and the
rest was also put in a parcel, and they were also given mark as B1 and B2.
The seizure athatchi was prepared and signed by the witnesses. The accused
was arrested and remanded to judicial custody. A report was sent to the
Inspector, marked as Ex.P10 . The F.I.R., the samples and the rest of the
seized contraband all were produced before the concerned Magistrate's Court on
the same day. On requisition, the samples were sent for analysis, while the
rest was returned to the Inspector to be kept in his custody. On 21.10.1 998,
the samples were sent for analysis, and they were accordingly done and found
to be a narcotic substance, according to the evidence of P.W.6. On completion
of the investigation, P.W.7 filed the charge sheet under S.8(c) r/w 18 of the
NDPS Act.
3. In order to prove the charge levelled against the appellant/
accused, the prosecution examined 7 witnesses and marked 12 exhibits and 3
material objects. When the appellant/accused was questioned under S.313 of
Cr.P.C. as to the incriminating circumstances found in the evidence of the
prosecution witnesses, he denied the same as false. No defence witness was
examined. After consideration of the rival submissions and materials
available, the trial Court found him guilty under S.8(c) r/w 18 of NDPS Act
and sentenced him as referred to above.
4. Arguing for the appellant, the learned Counsel interalia raised
the following points:
(a) The first line of attack was that the place where the appellant,
according to the prosecution, was intercepted and seizure was made, was the
place within the compound of one Sornam Lodge, and hence, even as per the
evidence available, it was a private place, and under such circumstances, the
mandatory provisions of S.42 of the NDPS Act should have been followed, but in
the instant case, it was not done so, and thus, it was fatal to the
prosecution case, and the lower Court should have rejected the case of the
prosecution. In order to substantiate the same, the learned Counsel relied on
the following decisions: (1) 1997 Crl.L.J. 513; (2) 1998 Crl.L.J. 132 and
(3) 2000 Crl.L. J. 1384.
(b) The second point that was raised by the learned Counsel was that
according to the prosecution case, the seizure was made on 15.10.98, and the
contraband seized along with the samples were produced before the concerned
Magistrate's Court only on 16.10.98 and again produced before the said Court
on 20.10.98; and that there is no evidence to show in whose custody the
contraband was from 16.10.98 to 20.1 0.98.
(c) Even for sending the samples for analysis, a huge delay has been
noticed, and apart from that, 25 grams of samples was seized and sent for
analysis. But according to the evidence of P.W.5 Analyst, the samples that
was sent weighed only 19.16 gram, and there was no possibility of loss of

weight when once it was sealed and brought for analysis, and thus, the
prosecution has not explained the said deficiency.
(d) The final report of the entire prosecution case should have been
sent to the immediate superiors by the concerned Officer as required by S.57
of the NDPS Act. Though it was not mandatory, it has got to be taken into
consideration along with the other aspects of the matter, which would no doubt
affect the prosecution case. From the evidence of P.W.10, it would be clear
that no such report was received by him, and under the circumstances, the
lower Court should have rejected the case of the prosecution, and in view of
the above noncompliance of the mandatory provisions of the Act, the accused is
entitled for an acquittal.
5. In answer to the above contentions, the learned Government
Advocate (Criminal Side) would urge that the prosecution by proper and
sufficient evidence has proved that the appellant/accused was in possession of
the contraband namely 2 kilos of abin, and after following the procedural
formalities, they were seized; that the place of interception and seizure was
only a public place, and hence, no question would arise as to the compliance
of S.42 of the NDPS Act, but, in the circumstances, it would attract only S.43
of the Act; that so far as the full report was concerned, the provisions under
S.57 of the Act does not spell any mandate, but, in the instant case, there is
available evidence to show that actually such a report was perused by P.W.7,
the next day; that according to the prosecution case, 25 grams of abin was
taken as samples from the seized contraband and was produced before the
concerned Magistrate's Court, which has accordingly been sent for analysis,
and in such circumstances, the fact to that extent has been proved, and hence,
the contention that 19.16 grams, according to P.W.1's evidence, was available
at the time of test, which is less than what has been taken naturally cannot
be given much weight, as the prosecution agency had no hands to do anything in
the same, and therefore, the lower Court was perfectly correct in convicting
the appellant/accused, and the judgment of the lower Court has got to be
sustained.
6. This Court has given its sincere and earnest consideration on the
contentions put forth by either side. The Court is of the firm view that
there is no substance in this appeal.
7. The prosecution has proved through the evidence of P.W.1 V.A.O.,
an independent witness that on 15.10.1998 at about 10.00 A.M. P.W.1 after
informing the right of the appellant as to the search as contemplated under
S.50 of the NDPS Act made a search of the packet which he voluntarily produced
and found two kilos of opium which was seized in the presence of the witnesses
under the mahazar. Samples have been taken, and in doing so also, procedure
has been followed. All the samples and the contraband were produced before
the concerned Magistrate's Court, and there is endorsement available to show
that on production, the rest of the contraband namely 1950 grams, the
remainder, except the sample, was returned to be kept in the custody of the
Department, and the same was in the custody of the Department till 20.10.19

98. It was produced before the said Court. Therefore it is futile on the
appellant's side to state that there is no evidence as to the custody of the
same from the period 16.10.98 to 20.10.98. From the available evidence, it
would be clear that it was in the custody of the Department. The samples have
been subjected to test, and the narcotic substance has been found, as per the
evidence of P.W.5 Analyst. Regarding the loss after the samples were taken
and before the test was made, the Court cannot give much weight. In this
context, the decision of the Apex Court reported in AIR 1999 SUPREME COURT
2355 (PON ADITHAN V. DEPUTY DIRECTOR, NARCOTICS CONTROL BUREAU, MADRAS) and
relied on by the learned Government Advocate has got full application to the
case on hand. On that account, no doubt can be cast on the prosecution case.
8. The Court is unable to agree with the contention of the
appellant's side that the search was made not in a public place, but within
the compound of the said lodge, and hence, mandatory provision of S.42 of the
NDPS Act should have been complied with, in view of the fact that from the
available materials and that the witnesses have clearly spoken to that effect.
That apart, it is found in the mahazar "giHa g!; epiyak;. EiHt[ thapy; mUnf
cs;s ghy; brhh;zk; yhl;;$; Kd;g[ itj; J". This place where the search and
seizure was made cannot at any stretch of imagination be taken to be as a
private place. Needless to say that it was a public place. It has been held
by the Apex Court in a decision reported in (2002) 8 SUPREME COURT CASES 7 (
NARAYANASWAMY RAVISHANKAR VS. ASSTT. DIRECTOR, DIRECTORATE OF REVENUE
INTELLIGENCE) that if search and seizure are conducted in a public place, in
such case, S.43 of the NDPS Act is applicable and not S.42 of the Act, and
hence, the question of non-compliance, if any, of the provisions under S.42 of
the NDPS Act in the instant case was wholly irrelevant. Applying the said
decision of the Apex Court, the said contention of the appellant's side does
not carry any substance.
9. In the light of the above reasons, the Court is of the view that
there is no merit in this appeal, and the same deserves to be dismissed.
However, the Court is of the opinion that the default sentence awarded by the
trial Court namely 2 years R.I. has got to be reduced.
10. Therefore, the default sentence of R.I. for 2 years imposed by
the lower Court is modified, and in default of payment of fine awarded by the
lower Court, the appellant/accused shall undergo R.I. for six months. In
other respects, the judgment of the lower Court is confirmed. With the above
modification, this criminal appeal is dismissed.
Index: Yes
Internet: Yes
To:
1) The Special District and Sessions Judge-NDPS, Madurai.

2) The Principal District and Sessions Judge, Madurai.
3) The Superintendent, Central Prison, Madurai.

4) The Public Prosecutor, High Court, Madras.

5) The D.I.G. of Police, Chennai 4.
6) Mr.O.Srinath, Government Advocate (Crl. Side), High Court
Madras
7) The Inspector of Police, NIB/CID, Thuthukudi.
vvk/

DATED: 06/08/2003
CORAM
C.A.No.212 of 2002 and C.A.No. 1271 of 2002
Union of India
Represented by the
Intelligence Officer
Narcotics Control Bureau
South Zone, C-3.A, Rajaji Bhavan
Besant Nagar, Chennai 600 090. .. Appellant in
CA 212/02 and
Respondent in
CA 1271/02
-Vs-
1. M.S. Faluluddeen @ Akeel

@ Mohamed Siddik .. 1st Respondent in
CA 212/02
2. A.C.M.Fazly
3. N.Akbar Ali .. Respondents 2 & 3
in CA 212/02 and
Appellants in
CA 1271/02
These two criminal appeals are preferred under Sec.374 of The Code of
Criminal Procedure against the judgment of the Additional Special Judge for
NDPS Act at Chennai made in C.C.No.107 of 2000 and dated 23.11.2001.
!For Appellant in
CA 212/02 and
Respondent in
CA 1271/02 : Mr.P.N.Prakash
Special Public Prosecutor
(NDPS)
^For Appellants in
CA 1271/02 and

Respondents 2 & 3
in CA 212/02 : Mr.AR.L.Sundaresan
For 1st Respondent

in CA 212/02 : Mr.B.Mohan
Amicus Curiae
:COMMON JUDGMENT
This judgment shall govern both the appeals.

2. The appeal in C.A.No.212/02 is filed by the State against the
acquittal of A-1 to A-3 of the in a narcotic case, while the appeal in
C.A.No.1271/02 is filed by A-2 and A-3 challenging the conviction and sentence
recorded against them along with A-1 in the case.
3. The necessary facts for the disposal of these two appeals are
thus:
P.W.8 N.Mohan, an Intelligence Officer, attached to the Narcotic
Control Bureau, Madras, submitted an information report under Ex.P25 on
21.3.2000 at 7.00 P.M. to his Superintendent P.W.11 Raghavan, a gazetted
Officer. According to the said information about 4 kilograms of heroin is in
Flat 1F, First Floor, Uma Complex, Kellys, Madras in the possession of A-1
Siddique, A-3 Fazly, Nazar- absconding accused and A-3 Akbar Ali. P.W.11 led
a team of Officers to search the said flat. They proceeded to the place,
where they had P.W.7 Murali and one Dhandayudhapani, not examined, as
witnesses, since they agreed for the same. Since they agreed for the same,
the Officials went to Flat F-1 and rang the calling bell. A-3 who opened the
door partially, on seeing the officials shouted "Police! Police" and tried to
close the door. Only after a brief struggle, the officials got entry and
apprehended A-3. A-1 and the absconding accused who closed the doors of
another room inside and jumped down through the balcony. While A-2 also tried
to jump, he was apprehended by the officials. The said Nazar escaped, while
A-1 Siddique who sustained injuries in his leg, was unable to run. He was
also caught by the officials. After following the procedural formalities as
contemplated under the provisions of the NDPS Act, P.W.1 Bhaskaran and P.W.11
recovered two packets of heroin namely M.O.2-2 kilograms and M.O.3-2.04
kilograms, totalling 4.04 kilograms under Ex.P1 mahazar. Samples were also
taken therefrom marked as M.Os.5 to 8 from the contraband for the purpose of
analysis. All the apprehended accused were taken to NCB Office and were
enquired as to their role in the conspiracy. The statement of A-1 was
recorded by P.W.4 Vijayalakshmi and marked as Ex.P16. The statement of A-2
was recorded by P.W.5 Shanmugam and marked as Ex.P19. The statement of A-3
was recorded by P.W.8 Mohan and marked as Ex.P26. In their statements, all
the three accused thoroughly detailed their role in the conspiracy to trafic
in heroin. As per the arrest memos under Exs. P17, P21 and P27 all the three
accused were arrested, and they were produced before the remanding Magistrate
along with Ex.P4 memo. All the samples were subjected to chemical examination

by P.W.2 Natarajan, Chemical Examiner, and a report under Ex.P11 was placed
wherein the Examiner has opined that the sample answers positive for
Di-Acetyle Morphine. After the completion of the investigation, the complaint
was filed before the Special Court under the provisions.
4. In order to prove the charges under Sec.8(c) r/w 29 of NDPS Act
against A-1, under Ss 8(c) r/w 21 and 8(c) r/w 21, 23, 25 and 29 of NDPS Act
against A-1 and A-2 and under Sec.8(c) r/w 21 of NDPS Act against A-3, the
prosecution examined 11 witnesses and marked 41 exhibits and 8 material
objects. On completion of the evidence of the prosecution, all the accused
were questioned under Sec.313 of Cr.P.C. as to the incriminating
circumstances found in the evidence of the prosecution, and all the accused
flatly denied the whole case of the prosecution as false. No defence witness
was examined. The trial Court on consideration of the available materials and
submissions made by both sides found all the three accused guilty under
Sec.8(c) r/w 21 of the N.D.P.S. Act and sentenced each of them to undergo
R.I. for 10 years and to pay a fine of Rs.1,00,000/- in default to undergo 2
years R. I., while acquitted all the accused in respect of the other charges.
Aggrieved over the conviction and sentence, A-2 and A-3 have preferred one
appeal, while the State aggrieved over the acquittal of the accused in respect
of all other charges has brought forth the other appeal.
5. Arguing for the appellants/A-2 and A-3 in CA 1271/02 and
respondents 2 and 3 in CA 212/02, the learned Counsel raised the following
submissions for consideration of this Court:
The prosecution in the instant case has thoroughly failed to prove the
possession, much less conscious possession in respect of any one of the
accused connecting them to the crime in question. It is admitted that the
contraband was not recovered from the body of any of the accused. The
prosecution proceeded with the case from the commencement only against A-1,
but at the time of evidence adduced through P.W.9, the owner of the flat, it
came to light that that A-2 was a tenant from whom he got advance and rental
also, and thus, the prosecution was unable to prove who was the actual tenant
and who was in possession of the premises, wherefrom the alleged contraband
was seized. P. W.9 has nowhere spoken about or referred to A-1. Though the
prosecution came forward with a case that 4 kilograms of heroin, the
contraband in question, was recovered from the Flat 1F, First Floor, Uma
Complex, Kellys, Chennai 10. The prosecution was unable to prove that either
they had the conscious possession or had the mensrea or the necessary
requisite knowledge by any positive evidence.
6. The learned Counsel for the appellants/A-2 and A-3 took the Court
through the documentary evidence adduced along with the oral evidence through
the witnesses. He would contend that in Ex.P25 it has been stated that A-1
was residing, and P.W.1 in his evidence has also stated that it was A-1, who
informed that he was in custody of 4 kilograms of heroin. No evidence is
available to connect A-2 and A-3 to the crime in question. The prosecution
has relied on the evidence of P.W.7 as an independent witness. According to

P.W.7, he was the Secretary of the residential flats in the said complex. It
is highly doubtful whether he was a Secretary at all, since no documents in
that regard were produced. According to P.W.7, he came to the building only
by 9.30 P.M. when there was a crowd. But, P.W.1 Officer has stated that he
was very well available at that time, when they went to the spot. Even in the
mahazar, A-1 is shown as a tenant, and all the documents seized would also be
reveal that A-1 was there.
7. The learned Counsel for the appellants/A-2 and A-3 and the learned
Counsel for the first respondent/A-1 would submit that both the mandatory
provisions of Ss 50 and 42(2) of the N.D.P.S. Act have not been complied with
by the Officials, but violated; that in the instant case, according to the
prosecution, Rs.2,00,000/- was recovered from the person of A-2, and under
such circumstances, there arose a necessity to comply with the provisions of
Sec.50 of the Act i.e. informing the accused as to his right to be searched
before a Magistrate or a Gazetted Officer, if he so desires; that in the
instant case, the evidence was available to indicate that the same was very
well informed to the accused, but they did not desire so, and the same was
also reduced to writing by way of a memo; that it is pertinent to note that
the same was not produced before the trial Court, which cast a doubt whether
such procedural formality was adopted; that there was violation of Sec.42(2)
of the Act; that from the available evidence, it would be very clear that the
search was made between 9.30 P.M. and 2.30 A. M., and thus, it was after
sent set and before sun rise; that had it been so, as per Sec.42 of the Act,
necessary search warrant should have been obtained from the Magistrate, and if
the officials felt that it would delay the process and would frustrate, the
officials can record the reasons therefor and send the same to the superior
within the stipulated time; that in the instant case the official has neither
obtained the search warrant nor reduced the reasons for so doing nor sent it
to the higher officials as required, and thus, in view of the violations of
these two provisions under Ss 50 and 42(2) of the NDPS Act, the alleged search
itself is vitiated; that in view of the above, the entire case of the
prosecution would fall to ground; that without proper appreciation of both
factual and legal position, the trial Court has found them guilty and
sentenced to undergo imprisonment, and hence, the judgment of the lower Court
has got to be set aside in respect of A-2 and A-3, and the appeal filed by
them be allowed, and the appeal by State has got to be dismissed.
8. Countering to the above contentions put forth by the learned
Counsel for the appellants/A-2 and A-3 and the learned Counsel for the first
respondent/A-1, the learned Special Public Prosecutor made the following
submissions:
P.W.8 gave Ex.P25 to his Superintendent P.W.11, who was a gazetted
Officer and who constituted a team. From the evidence, it would be clear that
all of them proceeded and a search was conducted, and hence, there is no
question of violation of Sec.42 of the Act would arise in this case, in view

of the fact that P.W.11 a gazetted Officer is empowered to proceed with, even
without a search warrant to make a search during all hours of the day. So far
as the contention of A-2 and A-3 that Sec.50 of the Act was not complied with
is concerned, the facts and circumstances do not warrant the provisions of
Sec.50 of the Act to be followed; that in the instant case, the flat where all
the three accused were in possession was searched. It is true that Rs.2,0
0,000/- was seized from A-2, which was produced before the concerned Court the
very day along with a mahazar. It is pertinent to point out that the said
Rs.2,00,000/- what was seized from A-2 was neither the contraband nor the
subject matter of the case, and hence, for making a search of a flat which was
in the possession of A-1 to A-3, the provision of Sec.50 of the Act has no
application at all. So far as the conscious possession of the accused was
concerned, all the three accused were in possession of the property. At the
time when the officials made the visit along with two witnesses, they rang the
calling bell, and A-1 who opened the door, on seeing the officials shouted "
police! police", and he was about to shut the door, but with some difficulty,
the officials got entry into the room; that at that time, three of the accused
out of four made their attempts to escape. In that attempt, the absconding
accused namely Nazar escaped through the balcony, while A-1 jumped through
balcony and sustained injuries. All the accused were arrested, and seizure
has been conducted procedurally. 4 kilograms of heroin was produced by A-1
stating that they were in possession of the same, and in that regard, out of
the two independent witnesses, P.W.7 was examined, and he has given a
categorical narration of the entire incident, and under such circumstances, it
would be futile on the part of the accused to state that they were neither in
possession nor conscious possession of the contraband. It is a fit case where
presumption has got to be drawn under Sec.35 of the Act. The prosecution by
the evidence adduced proved the culpable mental state of the accused, and it
is for the accused to prove otherwise, which they failed, and hence, the lower
Court was perfectly correct in finding them guilty under Sec.8(c) read with 21
of the NDPS Act.
9. The learned Special Public Prosecutor assailing the judgment of
the Court below in respect of the acquittal of the respondents/A-1 to A-3 of
the said charges including the charge of conspiracy would urge that all the
three accused were found in possession of the contraband, and the same has
been recovered from them; that they were all occupying a particular room; that
Rs.2,00,000/- was recovered from A-2, and it is true that there is no direct
evidence for conspiracy, which was hatched up by the accused; that there are
sufficient circumstance, from which the conspiracy could be well inferred, and
hence, the judgment of the lower Court acquitting the accused on the charge of
conspiracy has got to be set aside, and they should be dealt with in
accordance with law.
10. This Court paid its full attention on the elaborate submissions
made by both the Counsel for the appellants/A-2 and A-3 and for the first
respondent/A-1 and the learned Special Public Prosecutor and made a close

scrutiny of all the available materials. But, the Court is unable to notice
any merit in either of the appeals.
11. The case of the prosecution as could be seen above, was that on a
report placed by P.W.8 Intelligence Officer, P.W.11 Superintendent of Police,
N.C.B., constituted a team to go to the Flat 1F (First Floor), Uma Complex,
Kellys, Chennai 10 to work out the information. In the instant case, P.W.8 on
receipt of the information has reduced the same into writing, and the same was
also placed before the lower Court. From the evidence of P.Ws.8 and 11, who
are all attached to the Department, it would be abundantly clear that when the
team proceeded to the said flat, they had the assistance of P.W.7, who was the
Secretary of the Flat Occupiers' Association of that complex and one
Dhandayudhapani, the son of the owner of the flats, as both agreed to be
witnesses for the search; that they went to the flat finding the door closed
inside; that they rang the calling bell; that A-3 opened the doors partly,
found the officials and raised a voice "police! police"; that with
difficulty, they got entry into the flat, and immediately, three of the
accused out of four made their attempts to escape, while A-1 and the
absconding accused in their attempt to escape jumped through the balcony, and
A-1 sustained injuries; and that the other absconding accused could not be
caught, but the officials were able to apprehend the three persons, who were
the accused before the Court below and made the enquiries required. In the
instant case, since the search was made in Flat 1F (First Floor) Uma Complex,
Kellys, Chennai, it has to be necessarily pointed out that no necessity arose
to follow the mandatory provision under Sec.50 of the Act. Even then, the
evidence of the officials would indicate that they informed to the accused
about their right to be searched before a Magistrate or before a Gazetted
Officer, which they replied not necessary. This fact that the information was
passed on as to the right as contemplated under Sec.50 of the Act has been
spoken to not only by the officials, but by P.W.7, an independent witness.
The comment made by the learned Counsel for the appellants/A-2 and A-3 that it
is highly doubtful whether P.W.7 was the Secretary of the Flat Occupiers'
Association has got to be discountenanced for the simple reason that he has
spoken to all the details about the flats. The Court is unable to see any
circumstance or reason to disbelieve the evidence of P.W.7, who is a resident
in one of the flats and who happened to be the Secretary of that Association.
No animosity or enmity that he entertained against the accused has been
brought forth. 12. Apart from the above, when it was enquired, A-2 came
voluntarily and whispered that they were in possession of 4 kilograms of
heroin, and pursuant to the search of the room, the contraband in two packets
one containing 2 kilos and the other 2.04 kilos totalling 4.04 kilos was
seized. The evidence was available for taking out the samples out of it, and
the preparation of the mahazar, and hence, the evidence of P.Ws.1, 8 and 11 in
this regard is fully corroborated by the evidence of P.W.7. Thus, the Court
is able to find the positive evidence put forth by the prosecution as to the
possession of the contraband in question by all the three accused at the time

of search and seizure. Therefore, the contentions put forth by both the
Counsel for the accused that the prosecution initially proceeded with a case
that A-1 was a tenant, but the same was denied as if A-2 was a tenant, through
the evidence of P.W.9, and hence, the same would show the falsity of the
prosecution case cannot be accepted. The Court is of the view that the said
evidence cannot in any way affect the case of the prosecution, since it is not
a question on hand as to who was the tenant of the premises at that time or
not a tenancy dispute. Quite evident it is from the available evidence that
all the three accused at that particular point of time were occupying the said
room, and hence, as rightly pointed out by the learned Special Public
Prosecutor, it is a fit case, where the Court has to draw the presumption as
to the culpable mental state of A-1 to A-3 under Sec.35 of the N.D.P.S. Act.
It is true that it is a rebuttable presumption, but A-1 to A-3 have failed to
rebut the same, and hence, without any hesitation whatsoever, it has got to be
necessarily found that they were in illegal possession of the four kilograms
of heroin at the time of search and seizure.
13. Insofar as the other contention that since the search and seizure
have taken place during night hours between sunset and sunrise, necessary
search warrant should have been obtained from the concerned Magistrate by the
officials is neither sound nor legally founded in view of the facts of this
case. Admittedly, P.W.11, the Superintendent of Police on receipt of the
information has constituted a team and proceeded along with P.Ws.1 and 8 to
the spot. Even from the mahazar relied on by the prosecution and marked as
Ex.P1, it would be clear that the search was made by P.W.8 in the presence of
P.W.11. He has also signed the mahazar. Hence, it is quite evident that a
team was constituted by P.W.11 consisting of the other officials, and the
search was conducted. In the decision of this Court rendered by
Karpagavinayagam, J, in C.A.No.346/92 (THE ASSISTANT DIRECTOR, DRI. VS.
NARAYANASWAMY RAVISHANKAR), following the decision of the Apex Court reported
in 2000(1) S.C.C. 329 (MD. HUSSAIN PARAH V. UNION OF INDIA), it has been
held thus:
"31. In this case, P.W.1 is admittedly a Deputy Collector in Customs and
Gazetted Officer. Therefore, P.W.1 would not come under the category as
mentioned in Section 42, but he would include in the category of the Gazetted
Officers as provided under Section 41(2).
32. In the similar case, it was held by the Supreme Court in 2000(1) S.C.C.
329 (MD. HUSSAIN PARAH V. UNION OF INDIA) that when a search was carried out
by the officers referred to under Section 41(2), they were not required to
comply with the provisions of Section 42.
......
38. There is a major difference in the wordings in Sections 41(2) and 42 of
the Act. It is said in Section 41(2) that any such officer of Gazetted rank
of the specified department, if he has reason to believe from personal
knowledge or from information regarding the offence under this Act, may
himself arrest the person and search of the building, conveyance or place both

in the day time and in the night time or authorise any officer subordinate to
him who is superior to a Constable."
From the judgment of the Apex Court, which was followed by this Court in the
judgment referred to above, it would be quite clear that when a search is made
by an Officer of Gazetted rank like P.W.11, no search warrant is necessary as
contemplated under Sec.41(2) of the NDPS Act, and it is not a case where a
warrant was necessary under Sec.42(2 ) of the Act, and hence, the Court is
unable to appreciate all or any one of the contentions put forth by the
appellants/A-2 and A-3. Therefore, the lower Court was perfectly correct in
finding them guilty under Sec.8(c) read with 21 of the NDPS Act as to the
illegal possession.
14. Coming to the question of punishment, the lower Court has awarded
the minimum punishment of 10 years R.I. along with a fine of Rs.1,0 0,000/-
and in default 2 years R.I. The Court is of the considered view that while
confirming the substantive sentence, the default sentence of 2 years R.I. has
got to be reduced to 3 months R.I. Except the modification in the default
sentence, there is nothing to interfere in the conviction and the rest of the
sentence imposed by the Court below on A-2 and A-3.
15. So far as the appeal filed by the State is concerned, the Court
is unable to agree with the contentions put forth by the prosecution that the
conspiracy could be inferred from the proved facts. The Court does not find
any proved facts from which inference could be drawn that the accused were in
possession of 4 kilograms of heroin; and that Rs.2,00,000/- recovered from A-2
was pursuant to a conspiracy hatched up between them. There is nothing to
interfere in the judgment of acquittal passed by the lower Court. Hence, the
Court is of the considered view that the appeal by the State has no legs to
stand, and the same has got to be dismissed.
16. In the result, the default sentence of 2 years R.I. imposed by
the lower court on A-2 and A-3 is modified, and in default of payment of fine
of Rs.1,00,000/-, the appellants/A-2 and A-3 shall undergo 3 (three) months
R.I. In other respects, the judgment of the lower Court is confirmed. With
the above modification, both the criminal appeals are dismissed.
Index: Yes
Internet: yes 6-8-2003
To:
1) The Additional Special Judge for NDPS Act, Chennai.
2) The Special Judge for NDPS Act, Chennai.
3) The Principal Judge, Chennai.
4) The Superintendent, Central Prison, Vellore and Cuddalore
5) The Special Public Prosecutor (NDPS), Chennai.
7) The Intelligence Officer, Narcotics Control Bureau,
South Zone unit, Chennai 90.
nsv/

M.CHOCKALINGAM, J.
nsv/
C.A.Nos.212 and
1271/2002

Dt: 6-8-2003

DATED: 04/12/2003
CORAM
CRL.O.P.No.34232 of 2003
1. Sarijabanu (a)
Janarthani @ Janani
2. Rameeza .. Petitioners
-Vs-
State through
Inspector of Police (L&O)
Silaiman Circle in
Karuppayoorani PS
(Madurai Town)
In Cr.No.188 of 2003 .. Respondent
This criminal original petition is filed under Sec.37 of the Narcotic

Drugs and Psychotropic Substances Act, 1985 read with Sec.439 of the Code of
Criminal Procedure, 1973 to enlarge the petitioners/ accused 1 and 2 on bail
pending investigation in Crime No.188 of 2003 on the file of Karuppayurani
Police Station, Madurai Town.
For Petitioners : Mr.Kapil Sibal, Senior Counsel

for Mr.M.Sankarapandian
For Respondent : Mr.I.Subramanian

Public Prosecutor
:ORDER
An application for bail has been brought forth by these petitioners,

who are shown as A-1 and A-2 respectively in a case registered by the
respondent police under Sections 20(b)(ii)(c) and 25 of the Narcotic Drugs and
Psychotropic Substances Act (herein after referred to as NDPS Act), wherein
another person, who is shown as A-3, is also accused of the offences
punishable under Sections 8(c), 20(b)(ii)(c) read with 27(A) of the NDPS Act.
2. The case of the prosecution, as put forth before the Court below,

is that the petitioners who are daughter and mother respectively, are A-1 and
A-2, while A-3 is the Driver; and that A-1 and A-2 have committed offences
punishable under Sections 8(c) read with 20(b)(ii)(c) of the NDPS Act, while
A-3 committed offences punishable under Sections 8(c), 20(b)(ii)(c) read with
27(A) of the NDPS Act. On completion of the investigation, a final report has
also been laid before the Court below.
3. As could be seen from the available materials, the gist of the
case of the prosecution is as follows:
(a) On an information received by the respondent police on 10.7.2003
at 10.00 P.M. the Hyundai Accent GLS Car of the first petitioner was
intercepted at Madurai Ring Road at Melamadai Junction at about 11.00 P.M.
The car was driven by A-3. The first petitioner was found travelling in the
car. A search was made, wherein the Ganja weighing about 5 kgs. and
Rs.10,00,000/- in cash were recovered from the car. Neither the first
petitioner nor the driver had any licence for possession of the said Ganja.
The first petitioner was arrested at 11.15 p.m. on that day, when she made a
confessional statement to the respondent, pursuant to which 15 kgs. of Ganja
and a cash of Rs.30,00,000/- were recovered from the residential premises of
the petitioners at No.4/1078-A, Bharath Street, Anbu Nagar, Madurai, at about
1.15 A.M. on 11.7.2003. The second petitioner, who was present therein, was
arrested on 11.7.2003 at 1.15 A.M. Both the petitioners did not possess any
licence for keeping the said contraband, a narcotic substance. Both the
recoveries were made in the presence of two independent witnesses under the
cover of a mahazar. About 100 grams of the contraband seized from each of the
places were taken for analysis.
(b) Pursuant to the confessional statement made by the second
petitioner, the police party took the petitioners to Madras to a house in Door
No.486/C, Second South Cross Street, Kabaleeswarar Nagar, Neelankarai, an
another residence of both the petitioners, wherein 10 kgs. of ganja and a
cash of Rs.1,00,18,000/- were produced by them, besides some item of
jewellery. Even for the said contraband also, they did not possess any
licence. The recovery was made in the presence of two independent witnesses
under a mahazar, and a search list was also prepared. Separate memos as to
the recovery effected at Madurai and Chennai respectively were sent to the
Deputy Superintendent of Police, Tirupparankundram, Madurai and to the
Judicial Magistrate, Alandur, Madras. All procedural formalities relating to
the arrest and recovery of the contraband were duly complied with by the
respondent, and both the petitioners were taken to Madurai, and they were
produced before the learned Judicial Magistrate No.I, Madurai, at 10.30 P.M.
on 11.7.2003 and remanded to judicial custody.
4. Having failed in their attempt to obtain bail before the Court of
Sessions meant for NDPS Act cases, the petitioners have brought forth the
request for bail before this Court.
5. The learned Senior Counsel Mr.Kapil Sibal, advancing his arguments
on behalf of the petitioners for bail, made the following submissions:

The respondent police party actually made a trespass into the house of
the petitioners situated at Door No.A/1078-A Bharathi Street, Anbu Nagar,
Madurai, on 9.7.2003 at about 6.00 a.m., and they were assaulted, and a search
was made. The cell phones, pre-paid cards, photos, 3 diaries, R.C. Book,
passport, etc., were removed. Then, they were taken to another house at
Marudhu Pandian Street, Tahsildar Nagar, and extensive search was made. The
Accent Car parked outside their house opposite to Ultra College Students
Hostel, was seized by the police, and it was also brought to the Chatrapatti
Police Station. The petitioners were actually kept in illegal custody and
severely tortured, and therefrom, on 10.7.2003, at about 10.30 P.M. the
petitioners were taken in a police van to their residence at No.486C, Second
South Cross Street, Second South Main Road, Kapaleeswarar Nagar, Neelankarai,
Chennai, pursuant to which a search was conducted. The police officer seized
all the jewellery belonging to the petitioners, including the photographs. At
that time one Cook by name Ramaswamy was very well available. Thereafter, the
petitioners were brought back to Madurai, at about 10.30 p.m., produced before
the Judicial Magistrate No.I, Madurai, and remanded. While so, the
prosecution has come forward with a false case as referred to in the charge
sheet.
6. Added further the learned Senior Counsel for the petitioners that
the movement of the petitioners were restricted from 6.00 a.m. on 9.7.2003,
and they were in the custody of the police therefrom. They were tortured and
ill-treated by the police. The case of the prosecution that the Accent Car
was intercepted; that 5 kgs. of ganja and currency amount of
Rs.10,00,000/were seized; that the first petitioner has given a confessional
statement; that the driver was arrested by 2315 hours; that 15 kgs. of ganja
in a gunny bag and 5 kgs. of ganja in a bag and currency of Rs.30,00,000/-
were seized from the house of the petitioners at Anbu Nagar, Madurai; and that
the second petitioner was arrested, are all false. The further case of the
prosecution that 10 kgs. of ganja and currency of Rs.1,00,18,000/- were
recovered from the house of the petitioners at Neelankarai, Madras, is also
false. No ganja was seized either from her car or the house at Madurai or at
the house at Neelankarai. There was no occasion to seize ganja as put forth
by the prosecution.
7. According to the learned Senior Counsel, the following are the
circumstances which stand in favour of the petitioners:
(i) There is discrepancy in the alleged recovery of the contraband
ganja, as evidenced by the seizer mahazar, Form 95, F.I.R., remand report and
Form 91.
(ii) As per F.I.R. 5 kgs. of ganja was said to have been recovered
from the car, and 20 kgs. of ganja (15 kgs. in a gunny bag and 5 kgs. in a
bag) was said to have been recovered from the house at Anbu Nagar. As per the
remand report and Form 91, 10 kgs. of ganja was said to have been recovered
from the Neelankarai House, Madras, and thus, the total recovery is 35 kgs.
of ganja, according to the prosecution. As per the list of properties sent to

the Magistrate in Form 91, the total contraband has been shown as 30 kgs. and
not 35 kgs.
(iii) Form 91 in respect of the recovery of ganja from the house at
Anbu Nagar refers to only 15 kgs. and not 15 + 5 kgs. The recovery of 5 kgs.
of ganja in a bag was not forwarded to the Magistrate as per Form 91, even
though the said 5 kgs., according to the F.I.R., was found at Anbu Nagar in a
bag.
(iv) Form 98 in respect of the search conducted at the house at Anbu
Nagar, Madurai, shows that the quantity of ganja alleged to have been seized
in that house, has not been specified. The list showing ' recovered item'
does not mention any quantity.
(v) When we look into the Serial Number given in Form 98 search list,
they are not in order, but would differ, and the same would indicate the
falsity of the case of the prosecution.
(vi) Even as to the search and the preparation of seizure mahazar, the
procedure prescribed either under the Cr.P.C. or under the NDPS Act has not
been strictly followed.
(vii) One woman Inspector of Police has been a witness. She cannot be
an independent witness.
(viii) Apart from the above, two witnesses, who, according to the
prosecution, are independent witnesses, are not independent witnesses, since
they have been present at both the places at the time of the interception of
the car and also at the time of the search of the house.
(ix) A police officer, who has been a part and parcel of the team,
cannot be a witness to the same.
(x) The Athatchi, if looked into, would clearly show that the
Inspector has not signed the same at the place and time, when it was prepared,
according to the prosecution. This would clearly falsify the seizure of ganja
and arrest of the petitioners.
(xi) There has been a clear violation of Sections 42, 50, 52 and 57 of
the NDPS Act. It would clearly be indicative of the fact that the case is a
false one.
(xii) There are sufficient circumstances to indicate not only the
violation of the mandatory provisions, but also a false case that has been
foisted against them.
8. The learned Senior Counsel in his further argument would submit

that the constitutional provision as to the production of the accused within
24 hours from the time of arrest has been violated, and it is a case, where
the guidelines postulated by the Apex Court in D.K. BASU VS. STATE OF WEST
BENGAL (AIR 1997 SC 610) have not been strictly followed. This would clearly
show that there was illegal arrest and detention, and it is also humanly
impossible that the petitioners, after the search was made at Madurai, have
been brought to Madras, which is situated 500 kms. away, and have been taken
back to Madurai and produced before the Magistrate within 24 hours. The

confessional statement alleged to have been given either by the first

petitioner or by the second petitioner is nothing but a cooked up affair, in
order to suit the convenience of the prosecution case. Had it been true that
a F.I.R. came to be registered at 0330 hours on 11.7.2003, there could not
have been any impediment for the police agency to produce the petitioners
before the Magistrate at Madurai. There was no necessity for taking the
petitioners along with the contraband to Madras, where they made the search.
In the face of the violation of not only the provisions of Cr.P.C. but also
the provisions of NDPS Act, it cannot be stated that there is a prima facie
case in favour of the prosecution. While there are violations of mandatory
provisions of the NDPS Act namely Sections 42 to 57, the limitations contained
in Sec.37 of the NDPS Act, cannot be made applicable. Since the prosecution
has failed to comply with the mandatory provisions, as postulated under the
Act, it would be suffice to grant bail. Therefore, the petitioners are
entitled for bail.
9. In answer to the above contentions, the learned Public Prosecutor
Mr.I.Subramanian has made the following submissions:
The contentions put forth by the petitioners are of no avail, since
the prosecution has brought forth a prima facie case to the notice of the
Court. Sec.37 of the Act would make it abundantly clear that unless and until
the conditions what have been brought forth therein, prevail, no bail could be
granted. In this case, there was an interception of the first petitioner, who
was coming in a car, and in the presence of two witnesses 5 kgs. of ganja and
a cash of Rs.10,00,000/- were recovered. She has given a confessional
statement, pursuant to which, her house at Anbu Nagar, Madurai, was searched,
where A-2 was present, and 15 kgs. of ganja and a cash of Rs.30,00,000/- were
recovered under a mahazar. Subsequently, pursuant to the confessional
statement given by A-2, they were taken to Madras, and their house at
Neelankarai was searched in the presence of two independent witnesses, and 10
kgs. of ganja and a cash of Rs.1,00,18,000/- were also recovered. It is not
correct on the part of the petitioners to state that violations of provisions
either under Cr.P.C. or under NDPS Act have taken place. At the time of
arrest and preparation of recovery mahazar, two independent witnesses were
present, and all the recovered ganja and amounts were produced before the
Judicial Magistrate concerned on 11.7.2003. It is not correct to state that
the procedural formalities as per the mandates under Sections 42 to 57 of the
Act have not been complied with, since all the documentary evidence have been
produced before the Court. Even assuming that there are discrepancies, the
prosecution has got its time to explain the same, and it would be too early
for the petitioners to state that there has been a violation of the
constitutional provisions. The contention of the petitioners' side that they
were detained illegally and subjected to torture is nothing but a myth, since
at the time when they were produced before the Judicial Magistrate, not even
one complaint was made before the Magistrate at the earliest point of time.
It would clearly indicate that they are all inventions for the purpose of

bail. In the instant case, though the petitioners have come forward to state
that the contraband was planted, nowhere they have stated that at what
juncture and how the said contraband was planted. That part, it is not in
dispute that a huge sum of Rs.1,40,18,000/- was recovered from the car of the
first petitioner and from the houses of the petitioners both at Madurai and
Neelankarai. At the time when it was produced before the Court, an
application was filed by the Income Tax authorities to return the said amount,
to which a detailed objection was filed by the petitioners, in which nowhere
they have stated that it is not their money, or they do not make any claim.
But, they come forward to deny the same, which would clearly indicate that at
that point of time, they had the desire to claim the money as theirs. When
the matter was taken up by this Court, they have brought forth two affidavits
by two third parties. It is pertinent to point out that the first petitioner
has filed an affidavit before this Court, and even in that affidavit, she has
not stated that it is not her money, and thus, it would be clear that they
want to take their hold on this Rs.1,40,18,000/-. The prosecution has come
forward with the specific case to state that there is an inference that this
money has come to the hands of the petitioners only by way of illegal
trafficking in this narcotic drugs and Psychotropic substances, and it is for
the prosecution to prove the same at the time of trial. An application under
Sec.173(8) Cr.P.C. has been filed before the lower Court seeking permission
for further investigation. Under the circumstances, it would be too early to
say that the prosecution has no specific case in that regard. It is true that
there are certain discrepancies noticed in the documents filed. But, the
prosecution has got its opportunity to explain the same at the time of trial.
10. The learned Public Prosecutor made a full caution that there are
limitations available under Sec.37 of the Act, which have got to be looked
into, and would submit that it is not a case, where it can be held at this
stage as to whether sufficient materials are available and as to whether the
petitioners were not guilty of the offences, and unless and until the
petitioners are able to show that there are not guilty of the offences, they
are not entitled for bail. Hence, the bail application has got to be
dismissed.
11. The Court paid its full attention on the submissions made and had
a thorough scrutiny of the entire materials placed before it.
12. As could be seen above, the gist of the prosecution case is that
the car of the first petitioner was intercepted on 10.7.2003 at 11.00 p.m. at
Madurai Ring Road at Melamadai Junction, when the car was being driven by the
third accused, and ganja weighing 5 kgs. and a cash of Rs.10,00,000/- were
seized under a mahazar. Pursuant to the confessional statement by the first
petitioner, their house at Anbu Nagar, Madurai, was searched, and ganja
weighing 15 kgs. and a cash of Rs.30,00,000/- were recovered. Pursuant to
the confessional statement made by the second petitioner, they were taken to
Madras, where their house at Neelankarai was searched and 10 kgs. of ganja
and a cash of Rs.1,00,18,000/- were recovered. Thus, the prosecution has come

forward to state that the petitioners 1 and 2 were in possession of 35 kgs.

of ganja, a commercial quantity and Rs.1,40,18,000/- in total. A perusal of
the available materials would clearly indicate that at the time of preparation
of seizure mahazar, three witnesses have attested, out of whom, two are
independent witnesses. It is true that one of the witnesses is a Police
Officer. The statements of both the independent witnesses have been recorded.
It is pertinent to point out that the confessional statements given by the
petitioners have been recorded by the police. Now, in a case like this, where
such a huge quantity of ganja has been seized and produced before the lower
Court, the Court has to necessarily take into consideration the provisions of
Sec.37 of the NDPS Act. Under the circumstances, it would be more appropriate
to reproduce Sec.37 of the NDPS Act, which runs as follows:
"37. Offences to be cognizable and non-bailable:-

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973
(2 of 1974),-
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for offences under section 19
or section 24 or section 27A and also for offences involving commercial
quantity shall be released on bail or on his own bond unless-
(i) the Public Prosecutor has been given an opportunity to oppose the
application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is
satisfied that there are reasonable grounds for believing that he is not
guilty of such offence and that he is not likely to commit any offence while
on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section
(1) are in addition to the limitations under the Code of Criminal Procedure,
1973 (2 of 1974) or any other law for the time being in force on granting of
bail."
13. A very reading of the provision would clearly indicate that the
sheet anchor is that bail could be granted only in cases where there was no
prima facie case against the accused. Sec.37 of the Act disallows the grant
of bail, where there is a prima facie case made out. In the instant case, the
trial Court in its first breath has found that there exists prima facie
materials and has disallowed the request of the petitioners. It has got to be
kept in harmony with the provisions under Sec.37. Making a deviation
therefrom and granting bail would be nothing but betraying the essence of
Sec.37. The expression 'grounds' in Sec.37 would mean the materials,
inclusive of the conclusions of the available facts deducible from the
surrounding circumstances of a given case. The words 'not guilty' employed in
the said provision would only mean 'not likely to be held guilty at the
trial'.
14. It would be more appropriate and advantageous to set out the
judicial pronouncements of the Apex Court in the following three cases,

wherein the Apex Court has made expressions of the rigor of Sec.37 of the NDPS
Act.
(I) It has been held in BABUA ALIAS TAZMUL HOSSAIN VS. STATE OF
ORISSA (2001 CRI.L.J. 1169) as follows:
"The other aspect to be borne in mind is that the liberty of a citizen has got
to be balanced with the interest of the society. In cases where narcotic
drugs and psychotropic substances are involved, the accused would indulge in
activities which are lethal to the society. Therefore, it would certainly be
in the interest of the society to keep such persons behind bars during the
pendency of the proceedings before the Court and the validity of Section
37(1)(b) having been upheld, we cannot take any other view."
(II) In STATE OF M.P. VS. KAJAD (2001) 7 SUPREME COURT CASES 673, it
has been held thus:
"For granting the bail the court must, on the basis of the record produced
before it, be satisfied that there are reasonable grounds for believing that
the accused is not guilty of the offences with which he is charged and further
that he is not likely to commit any offence while on bail. It has further to
be noticed that the conditions for granting the bail, specified in clause (b)
of sub-section (1) of Section 37 are in addition to the limitations provided
under the Code of Criminal Procedure or any other law for the time being in
force regulating the grant of bail. Liberal approach in the matter of bail
under the Act is uncalled for."
(III) In SUPDT., NARCOTICS CENTRAL BUREAU, CHENNAI VS. R.PAULSAMY (2

001 CRI.L.J. 117), the Apex Court has held thus:
"In the light of Section 37 no accused can be released on bail when the
application is opposed by the public prosecutor unless the Court is satisfied
that there are reasonable grounds for believing that he is not guilty of such
offences and that he is not likely to commit any offence while on bail.
Adopting the exceptional course of granting bail to an accused involved in the
offence under NDPS Act on ground that there was prima facie violation of
Section 52 and there was prima facie non-compliance with Section 57 of the
Act, was not proper. Compliance of Ss.52 and 57 is matter which could be
established only at the trial and could not be prejudged at the stage of
consideration for bail. The minimum which the lower Court should have taken
into account was the factual presumption in law position that official acts
have been regularly performed. Such presumption can be rebutted only during
evidence and not merely saying that no document has been produced before the
Court during bail stage regarding the compliance of the formalities mentioned
in those two sections. The lower Court even had not recorded a finding in
terms of Section 37 of the Act which is sine qua non for granting bail to an
accused involved in the offence under the Act."
From the very reading of the above decisions, it would be abundantly clear
that it is for the accused to show that they are not likely to be held guilty

at the trial.
15. In the instant case, the prime contention of the petitioners'
side is that the mandatory provisions under Sections 42 to 57 of the NDPS Act
have been violated. In view of the aforesaid decisions of the Apex Court, it
can be well stated that it is too early to consider whether the mandatory
provisions have been violated. They have got to be properly considered and
decided at the time of trial, when the parties have got an opportunity to lead
evidence both oral and documentary before the trial Court, and not at this
stage. In the instant case, a detailed counter has been filed, and the bail
application has been seriously opposed by the prosecution. The proposition
canvassed on the basis of judicial consensus and other salutary considerations
bearing in mind the object and scheme of the Act, is that the procedural
lapses are not to be overplayed when prayer for bail is considered. Hence,
the contention put forth by the petitioners' side that there has been
violation of the mandatory provisions of the NDPS Act does not require any
consideration at this stage.
16. The next contention that the petitioners were subjected to
illtreatment and harassment, cannot also be countenanced, for the simple
reason that when they were produced before the Judicial Magistrate, they have
not complained of anything. Why not done so, no explanation is coming forth
from the petitioners' side.
17. On perusal of the entire materials on hand, the Court is of the
considered view that the following circumstances stand against the
petitioners:
(a) While making the bail application before this Court, the
petitioners have come with a specific averment stating that the first
petitioner is a post-graduate in Information Technology, and she has recently
cleared IAS preliminary examination, and she is to go for final examination in
IAS in 2003. A statement given by the first petitioner before this Court
would clearly reveal that she is yet to come out of graduation, and thus, it
was a false averment made in the application. At best, it can be well stated
that the first petitioner has made a false assertion in order to get bail.
(b) It is not in dispute that Rs.1,40,18,000/- has been recovered from
the petitioners. It is contended by the prosecution that this amount came to
be possessed by the petitioners by way of illicit trafficking in the narcotic
drugs and Psychotropic substances. It is true that no material has been
secured by the prosecution at the time of the investigation. It is pertinent
to note that when an application was filed by the Income Tax Department
praying that the amount was to be returned to the Department, since it was one
without any source, shown by the parties, a detailed objection was put forth
by the petitioners herein. A perusal of the objection, filed before the trial
Court, would clearly indicate that nowhere the petitioners have stated that it
is not their money.
(c) It is not in dispute that the petitioners were not employed, and
they had got pension of the husband of the second petitioner and also

Rs.5,000/- from the brother of the first petitioner. Except this, no source
of income is shown by them. Under such circumstances, the petitioners had no
explanation to offer before the lower Court how they came into custody of
Rs.1,40,18,000/-.
(d) The learned Counsel for the petitioners brought to the notice of
the Court that two affidavits have been filed at this stage by two independent
parties that the money belonged to them. It remains to be stated that in the
course of the affidavit filed by the first petitioner before this Court,
nowhere she has whispered that it is not her money. All would go to show that
in respect of the amount what has been secured, no explanation is brought
forth. Hence, the Court is able to see some force in the contention put forth
by the prosecution that their inference had some reason to be believed.
(e) Had it been true that the petitioners were tortured at the time of
the police custody, what prevented them from making any complaint before the
Judicial Magistrate at the earliest opportunity, no explanation comes forth.
(f) While the prosecution comes with the specific case that 35 kgs.
of ganja has been recovered from them and while the petitioners come forward
with the case to state that it was planted, at what juncture, where and how
such a huge quantity was pla remain unexplained. On the contrary, the
prosecution has got two independent witnesses to be examined at the time of
trial, as to how they were found in possession of the same and also as to its
seizure from them.
18. In the face of the above, at no stretch of imagination it can be
stated that there is no prima facie case, and in view of the rigor of law as
stipulated under Sec.37 of the Act, it cannot be held that they are not
guilty. As could be seen from Sec.37 of the Act, two conditions have got to
be satisfied for grant of bail. Firstly that there must be reasonable grounds
for believing that he is not guilty of such offence, and secondly that he is
not likely to commit any offence while on bail. It is true that in the
instant case, no antecedents of the petitioners involving drug trafficking or
any offence is brought to the notice of the Court; and that they have
permanent residence. But, at the same time, while there is prima facie case
that has been brought forth to the notice of the Court, the complaining of
violations of the mandatory provisions has got to be tested at the time of
trial, and it would be too early to hold that they are not guilty of such
offence, since the facts and circumstances do not warrant to hold so. Hence,
all the above things have g ot to be testified at the time of trial.
19. Whenever there is a conflict of interest between individual
liberty and the interest of the society, the paramount importance must be on
the interest of the society and not on the individual liberty. The Court is
of the firm view that the contentions put forth by the petitioners' side do
not merit acceptance by the Court, and they are not entitled for bail.
Therefore, this petition is liable to be dismissed.
20. While dismissing the petition, since the petitioners are in
incarceration from 11.7.2003, the Court feels that the trial has got to be

conducted expeditiously, and the case has got to be disposed of within a time
frame. Hence, the lower Court is directed to frame the necessary charges,
conduct the trial and dispose of the case in accordance with law, within a
period of 60 days herefrom. If there is any delay caused by the prosecution
side, the petitioners are at liberty to move this Court for appropriate relief
at that juncture. The respondent is directed to transfer the first petitioner
from the Government Ladies Reception Home, Mylapore, Chennai, to the Central
Prison ( Women Cell), Trichy, immediately.

21. With the above directions, this criminal original petition is
dismissed.
Index: yes
Internet: yes 4-12-2003
Note to Office:
Issue order copy
on 5-12-2003, and return the
concerned C.D. File to the
Public Prosecutor.
nsv/

DATED: 01/08/2003
CORAM
THE HONOURABLE MR.JUSTICE M. CHOCKALINGAM
CRIMINAL APPEAL NO.868 OF 2000 AND CRIMINAL APPEAL NO. 928 OF 2000
1. R. Paulsamy .. 1st Appellant in CA 868/00
2. Gladys Lilly .. 2nd Appellant in CA 868/00

and Respondent in CA 928/00
-Vs-
Superintendent,
Narcotics Control Bureau,
South Zonal Unit,
Chennai. .. Respondent in CA 868/00
and Appellant in CA 928/00
These criminal appeals are preferred under Section 374 of Cr.P.C.

against the judgment of the learned Special District and Sessions Judge for EC
Act and NDPS Act Cases, Madurai in C.C.No.521 of 1998 dated 1 5.9.2000.
!For Appellants : Mr.B.Kumar, Senior Counsel

in CA 868/00 for Mr.S.Shanmugavelayutham
and Respondent
in CA 928/00
^For Respondent : Mr.P.N.Prakash

in C.A.868/00 Special Public Prosecutor,
and Appellant N.C.B.
in CA 928/00
:COMMON JUDGMENT
This judgment shall govern both the criminal appeals, and the parties
hereinafter will be referred to as per the cause title in C.A.868 of 2000
namely appellants/A-1 and A-2 and respondent.
2. The appellants, who were arrayed as A-1 and A-2 respectively and
who were charged and tried namely A-1 under Ss 8(c) read with 21 and 29 of
N.D.P.S. Act and A-2 under Ss 27A, 28 and 29 of N.D.P.S. Act and Sec.193 of

I.P.C., have challenged the judgment of the learned Special District and
Sessions Judge for EC Act and NDPS Act cases convicting A-1 under Ss 8(c) read
with 21 and 29 of N.D.P.S. Act and A-2 under Ss 28 and 29 of the N.D.P.S.
Act and sentencing A-1 to undergo 15 years R.I. each and to pay a fine of
Rs.2.00 lakhs each in default to undergo S.I. for 2 years each and A-2 to
undergo R.I. for 15 years each and to pay a fine of Rs.2.00 lakhs each in
default to undergo 2 years S.I. each, while the State has challenged the
acquittal of A-2 by the same Court in respect of the offences under Sec.27A of
N.D.P.S. Act and Sec.193 of I.P.C.
3. The short facts necessary for the disposal of both the appeals can
be stated thus:
(a) On 7.5.98 P.W.50, S.S.Krishnamurthi, the Assistant Director of
N.C.B., South Zonal Unit, Chennai was on duty. At about 2.10 P.M. he
received a telephonic call from his informer P.W.12 Dominic requesting him to
come to Madurai on the same night so as to get a specific information
regarding a narcotic offence. P.W.50 accompanied by P.W.1 Shanmugam, an
Intelligence Officer and Sepoy Swaminathan left Madras at about 4.15 P.M. on
the very same day in the official Car. On reaching Madurai at about 12.30
a.m., they could not meet the informer near Palanganatham Bus stand. Then,
they proceeded to the place of the informer namely Radhapuram. On the way
when they reached Valliyoor, they tried to contact P.W.12 informer over phone.
P.W.12's father replied that his son P.W.12 was waiting in the Petrol bunk
situated near Madurai Palanganatham Bus stand. P.Ws.1 and 50 returned back to
Madurai. They were able to get in touch with P.W.12 at about 7.30 P. M.
P.W.50 reduced the information given by P.W.12 into writing. The original was
kept in a sealed cover. Ex.P73 was the information taken by P.W.50. At about
7.45 P.M. P.W.50 went to a STD Booth and contacted the Head Office through
phone. P.W.52, Prabhu who was available in the Office at Chennai received the
call. P.W.50 who received the information, placed the same before the
Director of Narcotic Control Bureau. Ex.P.209 is the print out bill gi ven to
P.W.50 in the STD Booth. At about 8.15 A.M. P.W.1 as per the directions of
P.W.50 went to Thiruchenduran Mansion and returned back stating that the room
No.1 16 was found locked. P.W.50 advised P.W.1 to fetch one independent
witness for the purpose of seizure. P.W.50 was remaining in the same place
and was on surveillance to find out the accused. At about 11.40 A.M. P.W.50
found the first accused coming in his official Jeep, getting down at Vasantha
Nagar Bus Stop and proceeding to Thiruchenduran Mansion with a plastic bag
being rolled and kept in his hand. At that time P.W.1 and P.W.7 Ayyannan, the
village assistant came there. P.W.7 agreed to be a witness for the
investigation. P.W.6 Krishna Rao, who was the Manager of the Thiruchenduran
Mansion, was told about the identity of P.W.50 and also about the purpose of
visit. P.W.6 also agreed to be a witness. Then P.W.50 accompanied by P.Ws.1,
6 and 7 went to the room No.116 in the first floor. The room was found locked
inside. P.W.50 knocked the doors, and the same was opened by the first
accused. P.W.50 introduced himself to the first accused and disclosed the

purpose of visit and his intention to search room No.116 of the accused. He
informed A-1 about his right available under Sec.50 of the NDPS Act. But, A-1
declined to avail the procedure of search before a Magistrate or a gazetted
Officer and accepted P.W.50 to conduct the search by himself. P.W.50 asked
A-1 whether there was any contraband heroin inside the room. At that time, A1
took out a rose colour polythene bag containing 2 packets inside a cloth bag,
which was kept on the cot and handed over the same to P.W.50 and told him that
it contained a narcotic drug heroin. P.Ws.1 and 50 deposed that at the time
of handing over the heroin packets, the first accused told them that the same
was recovered by a few minutes before in Vasantha Nagar Bus stop, and the same
was thrown in the street by a suspicious person, who ran away from the place,
and he brought back the said heroin for the purpose of registering a case, but
no mahazar was available with A-1 for the recovery of the said heroin. P.W.50
was also sure that when he was vigilantly watching at the bus stop, he found
the first accused going to the Mansion only with a rolled rose colour plastic
bag, and he did not notice such incidence as narrated by the first accused.
Not satisfied with the explanation tendered by the first accused and finding
that there are reasons to believe that the first accused was found to be in
illegal possession of the heroin packets, he directed P.W.1 to seize them.
(b) In the presence of P.W.50, P.W.1 removed the brown colour adhesive
tape covered in the first packet and found that there were two packets inside.
Each packet was kept in polythene cover and contained each small packet inside
the same. P.W.1 took two samples of 5 grams each from the first big packet by
using the balance and put the same into two separate covers and sealed it with
NCB No.11. He also measured the rest of the heroin in the packet and found
the same was weighing 890 grams. He marked the two sample packets as PS1 and
PS2 and the rest of the packet containing 890 grams as P1. Then P.W.1 removed
the brown colour adhesive tape covered in the second packet and found that
there were two packets inside. P.W.1 took two samples weighing about 5 grams
each by using the balance and put the same into two separate covers and sealed
it with NCB No.11. He also measured the rest of the heroin in the packet and
found the same was weighing 948 grams. He marked the two sample packets as S3
and S4 and the rest of the packet containing 948 grams as P2. At the time of
measurement and seizure P.Ws.6 and 7 were witnessing the investigation. A-1
also handed over his two identity cards under Exs.P4 and P5 and Ex.P2
Gramadhyog bill for purchasing the handbag marked as M.O.10 and also his train
ticket for his proposed journey from Madurai to Nagercoil on 8.5 .1998. All
those documents were recovered from the first accused at the time of seizure.
The samples sealed cover are marked as M.Os.2, 3 , 5 and 6 respectively, while
the sealed covers are marked as M.Os.1, 4 and 7 to 9 respectively. P.W.1 took
the xerox copy of the identity cards Exs.P4 and P5 produced by the first
accused and took the signature of the first accused in the xerox copy which
was marked as Ex. P6. The first accused, P.W.1, P.W.50, P.W.6 and P.W.7
subscribed their signatures over M.Os.1 to 9. P.W.1 prepared mahazar in the
presence of the first accused and the witnesses. M.Os.2, 5, 7 and 8 were sent

for chemical analysis. The remaining M.Os.1, 3, 4, 6 and 9 were available in

the same condition as they were at the time of seizure. M.O.10 was the cloth
bag wherein the contraband was kept. M.O.11 was the rose colour polythene bag
and M.O.12 was 2 numbers of adhesive tapes used by the first accused to cover
the polythene packets. When P.W.1 prepared mahazar under Ex.P1, P.w.8
Vivekanandan, Jeep driver of the first accused came to Room No.116. P.W.50
asked P.W.8 to wait outside and after preparation of mahazar, he called P.W.8
inside. P.w.50 issued summons to P.W.8 and the first accused under Section 67
of NDPS Act, and they were marked as Exs.P185 and P182. Thereafter, the said
room was locked and key was kept in the custody of P.W.1.
(c) The first accused was taken by P.W.50 to the Office of the
Assistant Commissioner of Police, Madurai. P.W.50 examined P.W.8, and P. W.8
gave a statement in his own handwriting, which was recorded under Ex.P.58 and
a copy was also received by him. P.W.50 examined the first accused, and the
first accused also gave a statement in his own handwriting, and the same was
marked as Ex.P.183. Then, P.w.50 prepared the arrest memo of the first
accused marked as Ex.P.184, and the same was also furnished to A1, who
acknowledged the receipt in Ex.P.184, and a witness by name Karuppiah also
attested the same. P.W.1 prepared a report under Ex.P7. P.W.50 also prepared
a report under Section 57 of NDPS Act for the seizure and arrest of the first
accused under Ex.P.210. P.W.50 also handed over the original information in
writing given by P.W.12 under Ex.P.73 to P.W.1 to be handed over to the office
at Madras. The first accused was produced before the concerned court and
remanded to judicial custody till 24.5.1998. P.Ws.1 and 50 speak about all
the facts in their evidence. P.W.50 then went to Tirunelveli and Tuticorin
for the purpose of gathering evidence regarding the conspiracy of A-1 and A-2.
On 16.5.98 he returned back to Madras. He came to know that the second
accused has taken steps to abduct the informer P.W.12, and a case was
registered in that regard. He contacted the District Special Crime Branch
Inspector, Tirunelveli to furnish particulars and got a fax message that cases
are registered in Valliyoor Police Station Crime No.141/98 and Kodambakkam
Police Station Crime No.148/98 and Koodankulam Police Station Crime No.148/9 8
against A-2 and some others. Then, he contacted the Assistant Commissioner of
Central Excise, Tanjore to find out whether A-2 was on duty or on leave.
Ex.P111 is the letter sent by P.W.50 to the above address. Ex.P112 is the
reply received from Tanjore. On 27.5.98 P.W.5 0 went to Madurai, Tirunelveli
and Tuticorin to find out A-2. A-2 was relieved on 8.5.98 from her duty from
Central Excise, Tanjore, and she was transferred to Tirunelveli, but she did
not join duty at Tirunelveli, nor has she applied for any leave. P.W.50
enquired P.W.33 Prabakaran and obtained his statement. P.W.50 was transferred
to Coimbatore as Deputy Superintendent of Police. P.W.51 Raghavan,
Superintendent of NCB South Zone, Chennai, who was at camp at Hyderabad on 8.5
.98, came to the Office on 10.5.98 to receive the contraband seized. P.W.51
after receipt of the material objects issued Ex.P11 receipt. On 11.5.98 he
entrusted the M.Os. to P.W.1. On 19.5.98 P.W.51 went to Central Excise

Office at Madurai and handed over Ex.P17 letter to P.W.2 Periasamy successor
in office of A-1, requesting copies of the documents. P.W.2 sent a reply
under Ex.P18 along with the copies of the documents under Exs.P19 to P21.
Ex.P19 information report was duly signed by P.W.4 Sriram. P.W.51 issued
summons to P.W.3 Srinivasan. P.W.3 gave his statement, and it was marked as
Ex.P40. On 20.5.98 P.W.51 and P.W.45 Rajasekaran went to P.W.7's house and
issued summons to him. Since P.W.7 expressed his inability to write his
statement, P.W.45 reduced the statement given by him into writing under Ex.P5
5. P.W.51 left for Madurai on 29.5.98 to find out the activities of the
second accused. He learnt that two days back, A-2 was at Madurai, and at that
time she was found to be with P.W.33 and one Karunakaran.
(d) P.W.51 issued summons to P.W.33 under Ex.P161A and examined him.
P.W.33 gave a statement under Ex.P161 in his own handwriting. P.W.33 would
confirm that he is the owner of Car bearing Registration No.TN-31-Y-3906. On
1.5.98 P.Ws.50 and 51 wen Tuticorin for examining Udayasooriyan, but, he was
not available. P.W.51 came to know that some of the witnesses' statements
under Sec.164 of Cr.P.C. were recorded in the Judicial Magistrate's Court,
Musiri. He deputed Mr. Sivakumar to go to Musiri for getting the certified
copies of the said statements. On 1.6.98 when P.W.51 came to the Office, he
found a telegram under Ex.P88A issued in the name of P.W.15 Udayasuriyan.
After serving summons under Ex.P189A, P.W.51 examined P.W.15. P.W.15 gave a
statement under Ex.P90 in his own handwriting. P.W.15 also gave an additional
statement under Ex.P91 and confirmed the identity of A-2 available in Ex.P92
xerox copy of the photo. P.W.51 examined Thillairajan on 7.6.98 by issuing
summons under Ex.P214. P.W.51 sent a letter under Ex.P176 to the Assistant
Commissioner, Central Excise, Tirunelveli on 9.6.98 and enquired whether A-2
applied for leave. On 9.6.98 the NCB Office received a letter under Ex.P172
from P.W.12 stating that A-2 attempted to murder him. The office also
received another telegram in the name of P.W.13 Sam Immanuel marked as
Ex.P78A. After issuing summons under Ex.P80, P.W.51 examined P.W.13. At that
time, P.W.13 handed over Exs.P82A and P83A documents. P.W.21 Ramkumar,
Assistant Commissioner, Customs, Tirunelveli sent Ex.P110 reply stating that
A-2 applied leave from 19.5.98 to 12.5.98 and extended the same to 30.6.98.
P.W.51 asked about the particulars of the leave applied by her vide Ex.P61
letter. P.W.9 Subbiah Nadar gave a reply under Ex.P62 stating that after
30.6.98 there was no request from A-2 for extension of leave. P.W.51 deputed
Nandakumar, an Intelligence Officer along with Ex.P27 letter to approach P.W.2
and collect the copies of the mahazars. P.W.2 gave a reply under Ex.P28 along
with Exs.P29 to P38 and P45 documents. P.W.51 came to know that P.W.8
Vivekanandan, Sepoy-cum-Driver also appeared before the VI Metropolitan
Magistrate' s Court, Chennai and gave a statement under Sec.164 of Cr.P.C.
marked as Ex.P60. (e) P.W.51 thought it proper to examine one Mani. He
went to his watch Company, but the same was found locked. He affixed the
summons marked as Ex.P107 in the presence of P.W.20 Saminathan. He prepared a
mahazar under Ex.P108. P.W.51 directed P.W.45 Rajasekaran, another

Intelligence Officer to examine one Sekar. P.W.45 issued summons under

Ex.P179 to the brother of Sekar namely P.W.39 Loganathan and recorded a
statement. On directions Mr.Nandakumar, an Intelligence Officer went to
Nagercoil and gave Ex.P205 letter to P.W.48 Sivasankaran, Sub-Divisional
Officer, Telephone Exchange, Nagercoil. Ex.P206 is the reply sent by P.W.48.
P.W.48 also furnished Exs.P206 to P208 printouts. On 24.7.98, P.W.51 went to
the house of P.W.12 and gave summons under Ex.P75 and examined him. Ex.P76 is
the statement given by P.W.12 in his own handwriting. P.W.51 started taking
steps to arrest A-2. He gave Ex.P150 application t o all Women Police Station
at Kottaru and got the assistance of P.W.32 Sathivanimuthu and one
Vijayalakshmi, a Lady Constable. He deputed Sivakumar, another Intelligence
Officer to examine Velmurugan. P.W.51 sent a letter under Ex.P113 to P.W.23
Gabrial Pandian, Superintendent of Central Excise, Tirunelveli. The summons
to A-2 under Ex.P114 sent along with Ex.P113 was also served by affixture by
the office of P.W.23. P.W.23 sent a reply under Ex.P116 to P.W.51. After
getting permission, P.W.51 served summons under Ex.P46 on P.W.5 Sekar and
recorded his statement under Ex.P47. On 31.7.98 P.W.51 received a letter
under Ex.P119, and he came to know that A-2 extended her leave vide Exs.P120
and P121 letters. Since A-2 did not attend in person on 30.7.98, with the
available evidence, P.W.51 filed a complaint on 3.8.98. On the same day A-2
gave two telegrams to P.W.51. He also received Ex.P219 letter. He gave a
reply under Ex.P220, but it was returned unserved. The order of the High
Court in O.P.12835/99 filed by A-2 under Sec.482 Cr.P. C. to quash the
proceedings of this case is marked as Ex.P222. In Crl.O.P.No.17654/99, the
High Court has directed the CBI Police and Tamil Nadu Police to arrest A-2 and
produce before the Court. The order of the High Court is marked as Ex.P223.
(f) On 1.2.2000 A-2 surrendered before the Nanguneri Judicial
Magistrate's Court. P.W.51 obtained permission of this Court and went to
Kokarakulam Sub Jail for examining A-2 in the presence of P.W.31 and another
lady Intelligence Officer Mrs.Javalia. P.W.31 examined A-2, and she gave a
statement in writing under Ex.P149. P.W.14 Rajendran owner of the Ambassador
Car No.TN 2938 was als o examined by the NCB Officials on 13.7.98 on summons
under Ex.P86. The statement given by P.W.14 is marked as Ex.P87. P.W.16
Murugan who drove the vehicle from Madurai to Tiruchi and Musiri Court, was
also examined, and his statement is marked as Ex.P95, while the summons issued
to him is marked as Ex.P94. P.W.19 Kathirvel was also examined on summons
under Ex. P102, and the statement given by him is marked as Ex.P103. P.W.25
Ramesh, Manager of Hotel Sudhara, T.Nagar, Chennai was summoned by the NCB
Officials under Ex.P124, and he was examined. He gave a statement under
Ex.P125. P.W.26 Packthavachalam, the then Manager of Nathan House Lodge,
Chennai was also summoned under Ex.P128, and he gave a statement under
Ex.P130. P.W.27 Ramababu, the Receptionist in Aruna International Hotel,
Chennai was examined on summons under Ex.P131, and his statement is marked as
Ex.P132. A summon was issued to P.W.29 Radhakrishnan, a Head Constable
attached to D2 Jaihindpuram Police Station, Madurai under Ex.P145, and he gave

a statement under Ex.P146. P.W.30 Mohan, an Intelligence Officer filed a

report under Ex.P147. Ex.P148 is the second report filed by him. P.W.33 was
examined, and he gave a statement under Ex.P174. P.W.37 S ivaraman, an
Intelligence Officer gave summons under Ex.P131 to P.W.27 and recorded his
statement under Ex.P132. He also gave summons to P.W.34 Suresh and recorded
his statement under Ex.P164. He recovered Exs.P167 to P171 from P.W.34. He
served summons under Ex.P124 to P.W.25 and recorded his statement under
Ex.P125. He also recovered Exs.P122, P123, P126 and P12 7 from P.W.25. He
also issued summons to P.W.26 and recorded his statement under Ex.P130.
P.W.40 Selvi M.Pitchammal who was then Judicial Magistrate No.V, Madurai
deposed that at the time of remand, A-1 did not complain about P.W.50. P.W.43
Gunaseelan, the then Metropolitan Magistrate No.VI, Chennai examined P.W.8 and
recorded his statement under Sec.164 of Cr.P.C. marked as Ex.P160. P.W.44
Thayarammal, the then Chief Judicial Magistrate, Tiruchi passed an order under
Ex.P18 6 directing the Judicial Magistrate No.V, Tiruchi to record the
statement of P.W.33 under Sec.164 Cr.P.C. P.W.46 Tiruchitrambalam, then
Judicial Magistrate No.II, Tuticorin recorded the statements of P.Ws.6 and 7
on 27.7.98 under Sec.164 Cr.P.C. marked as Exs.P53 and P57 respectively.
P.W.47 Deenadayalan, the then Judicial Magistrate, Musiri recorded the
statements of one Karuppiah, D.W.4 Mani and Chandrasekaran under Sec.164 of
Cr.P.C. marked as Exs.P199, 201 and 203 respectively. P.W.49 Shaik Ahamed,
the then Inspector of Police, Valliyoor P.S. deposed that the Crime No.141/98
was taken on file by the Judicial Magistrate, Valliyoor in C.C.No.134/98.
After receipt of the contraband, P.W.11 Sankaran, Chemical Examiner attached
to the Office of the Dekputy Chief Chemist, Customs House, Chennai conducted
the test and gave two reports under Exs.P70 and P71. During test, he found
that all the samples contained heroin.
4. In order to prove its case, the prosecution has examined 52
witnesses and marked 228 exhibits and 12 material objects. After the evidence
of the prosecution was over, the accused were questioned under Sec.313 Cr.P.C.
as to the incriminating circumstances found in the evidence of the prosecution
witnesses. On the side of the defence, 4 witnesses were examined, and 7
documents were marked. Exs.C1 to C5 were marked. On hearing the submissions
of both sides and consideration of the available materials, the trial Court
found A-1 guilty under Ss 8C r/w 21 and 29 of NDPS Act and A-2 guilty under Ss
28 and 29 of NDPS Act and sentenced them to undergo imprisonment as stated
supra, while it has acquitted A-2 of all the other charges. While the
appellants/A-1 and A-2 have brought forth an appeal against the conviction and
sentence, the State has come forward with an appeal against the acquittal of
A-2 under Sec.27A of the N.D.P.S. Act and Sec.193 of I.P.C.
5. Arguing for the appellants/A-1 and A-2 in C.A.868/00 and
respondent in C.A.928/00, the learned Senior Counsel Mr.B.Kumar brought the
following points for consideration by this Court:
(a) It is true that the appellant/first accused was in possession on
8.5.1998 of what he thought at that time as 2 kilograms of heroin, but the

said fact could not ipso facto be an offence under the N.D.P. S. Act, as his
status as an empowered officer having the powers of seizure under Sec.42 of
the Act and the power to possess any narcotic drug under Sec.53 of the Act
would be a complete answer to the charge of possession. Qua possession of a
narcotic drug by an empowered officer to amount to an offence, the prosecution
must further prove that the said official was in possession of the narcotic
drug, which he had illegally acquired from a concerned source or having
legally acquired was keeping it for utilisation for unlawful purposes. But,
the prosecution has failed to prove the same in the instant case. Without
proof in that regard, the prosecution would be wholly unsustainable. If it is
not so, the act itself would not be properly worked and implemented. Both the
appellants were empowered officers under the N.D.P.S. Act at all relevant
times, and hence, they were entitled to protection under Sec.69 of the said
Act stating that no prosecution or other legal proceedings shall be launched
against them, while they are exercising their powers or discharging any
functions or performing any duties under the Act for anything in good faith
done or intended to be done under the Act.
(b) The burden of proof under Sec.54 of the Act and the presumption as
to the mental state under Sec.35 of the Act would arise only when the
prosecution has established the illegal source of acquisition of the narcotic
drug by the empowered officer not otherwise, since any other view would amount
to requiring the accused to prove his innocence. If the Court is of the view
that there was a burden of proof on the accused under Ss 54 and 35 of the Act,
having been in possession of a narcotic drug as an empowered officer, as such
A-1 has discharged the burden under the said provisions. The burden of
rebuttal casts on the accused to explain anything or rebut a rebuttable
presumption is to be judged by the preponderance of probabilities as in a
civil case and not by standard of proof beyond reasonable doubt. The accused
can discharge the burden by showing the infirmities in the prosecution case,
which itself would amount to a rebuttal and also by examining the defence
witnesses and probablising his version of the event. In the instant case, the
accused has done both. Number of witnesses on whose evidence the prosecution
initially desired to rely, have turned hostile. It is true that the evidence
of the hostile witness need not be described merely because he has turned
hostile, but the evidence could be acted upon by either side, provided there
is corroboration to his evidence. A person examined on behalf of the accused
as a defence witness is also entitled to such credence as any such prosecution
witness. In the instant case, the prosecution has rested its case on the
previous statements recorded from the witnesses and has used such statements
recorded during investigation as substantive evidence. The lower Court has
also relied on those statements and has treated them as substantive piece of
evidence, despite the fact that the witnesses have turned hostile. This was
on an erroneous interpretation of Sec.53A(1)(b) of the NDPS Act. In the
instant case, the defence has thoroughly probablised even at the initial stage
that the narcotic drug in question was recovered pursuant to an information by

way of seizure at Pazhanganatham Bus Stop 150 feet away from his lodge, a few
minutes earlier to the seizure in his room. In order to probablise the same,
the defence has examined D.W.4 whose evidence is thoroughly corroborated by
the evidence of P.Ws.2, 3, 5, 6, 7 and 8. Even the prosecution has
specifically admitted that A-1 has stated the same at the time of seizure and
the version of A-1 as mentioned in the mahazar. A-1 has stated in his
statement recorded on the very next day on 9.5.1998 in Ex.P183 in which he has
categorically named the two witnesses Sekar and D.W.4 Mani as the independent
witnesses called by him and who were brought by him to the room to witness the
mahazar proceedings. In fact number of questions have been put to A-1 during
the course of enquiry under Sec.67 of the Act by P.W.50. All those questions
were designed to discredit the defence version. Thus, at the earliest point
of time A-1 has revealed how and what basis the 2 kgs. packets said to
contain narcotic drug was found in his room under his occupation.
(c) During the course of trial, the accused examined D.W.4 who has
deposed how he was present at the bus stop and witnessed the seizure of 2
packets later found to contain heroin. The evidence of D.W.4 was cogent and
consistent with facts and surrounding circumstances. During the course of
cross examination, P.W.8, Sepoy-cum-Driver has fully supported the defence
version. Even though P.W.8 was treated as hostile, his evidence could be
acted upon and relied on by the defence. P.W.6 the Manager of the Lodge has
also deposed that A-1 when he came inside Senduran Mansion at about 12.00
noon, was accompanied by three persons one of them being P.W.8, and they went
to his room. In this context A-1 has stated in Ex.P183 statement that he took
the independent witnesses Sekar and D.W.4 Mani and P.W.8 to his room so as to
commence writing mahazar for the seizure he has effected at the bus stop.
P.W.7 does not discredit the defence version, but has deposed that he was
called to the Deputy Commissioner's Office for the first time only on 9.5.1998
to sign as a mahazar wi tness under Ex.P1. Thus, the version of P.Ws.6 and 7
that they were made to sign Ex.P1 only at the Office of the Deputy
Commissioner of Police at Madurai on 9.5.98 is also probablised as the place
for writing the names of the witnesses at the top of Ex.P1 mahazar has been
filled up later and that was also in a different ink. This defect in the
mahazar was accepted even by P.W.50. Hence, P.Ws.6 and 7 could not be
witnesses to the mahazar on 8.5.98.
(d) P.W.50 Officer has taken pains to discredit the version of seizing
the goods at the bus stand at about 11.30 A.M. on 8.5.2000 in his oral
evidence, which was thoroughly unacceptable. P.W.50 was the only witness who
had kept surveillance between 8.30 A.M. and 11.40 A.M. of Room No.116, I
Floor, Thiruchenduran Mansion. According to him, P.W.1 was sent away by
P.W.50 at about 8.30 A.M. to fetch a Thalayari or other revenue official to
be a witness for the mahazar proceedings and P.W.1 had gone and had not come
back till A-1 had gone inside the room in the lodge. So, P.W.1 could not know
what had happened in the bus stop. The Sepoy who was said to have come with
P.Ws.1 and 50 from Madras was not examined. P.W.50 himself could not have

witnessed what was taking place in the bus stop, since he got the information
that A-1 was keeping narcotic drugs specifically at room No.116 Thiruchenduran
Mansion, which was situated in the first floor. It is pertinent to note that
Thiruchenduran Mansion was in a lane away from the main road, wherein the bus
stop was situated. According to P.Ws.1 and 50, they mounted surveillance of
room No.116, Senduran Mansion which was in the first floor, and hence, it
would be highly impossible to see also what was happening at the bus stop.
Therefore, P.W.50 could not have seen about the seizure made by A-1 at the bus
stop. Hence, P.W.50's evidence in that regard has got to be eliminated from
consideration. It remains to be stated that in the case of statutory reports,
Sec.57 reports of P.Ws.1 and 50 namely Exs.P7 and P210 do not mention about
the surveillance at the bus stop. This fact was not even mentioned in the
arrest memo or remand report or any other written contemporaneous document,
and thus, the evidence of P.W.50 was inherently unacceptable.
(e) The defence has proved to the hilt that there was a seizure by A-1
of what he then thought as 2 kgs. of heroin. P.W.8 Vivekanandam, Sipoy cum
Driver for the Central Excise Department has deposed that at 9.15 he went to
the Excise Commissioner's Office and reported before A-1; that A-1 told him
about an information so that the same could be investigated; that when P.W.8
asked A-1 if it was necessary to take another Officer, A-1 replied that there
was only one Officer in the Office at that time and he would see whether the
information was right or wrong; that on the way A-1 purchased a bag and came
to Vasantha Nagar bus stop; that he stopped the jeep at the right side; that
A-1 got down from the jeep; that he saw a person with bag trying to run away
on seeing A-1; that A-1 chased him, but the person dropped the bag and ran
away; that A-1 recovered the bag, brought two persons as witnesses and came to
the jeep; that A-1 kept the bag in the jeep and went to the STD Booth to make
a phone call to his Office, but he could not get connection; that he wanted to
keep the goods in a safe place; that then all the three of them went to
Thiruchenduran Mansion situated about 150 feet away from the place of seizure;
that he kept the bag in the cot in the room and told P.W.8 to wait there as he
wanted to make a phone call to his office; that at that time, the NCB Officers
came there, enquired them and told them to go and sit in the reception in the
ground floor; that he was waiting there, and the key for the jeep was taken
from him; and that he also identified M.O.10 as the bag purchased by A-1 and
M.O.11 as the bag containing 2 kgs. of heroin dropped by the person at the
bus stop. Though P.W.8 has turned hostile, his evidence was acceptable, since
he was an employee of the Central Excise Department. He was a natural
witness, who had admittedly drove the official jeep in which A-1 travelled.
His categorical statement that A-1 alone travelled in the jeep to work out the
information received, which might lead to the recovery was also corroborated
by the evidence of the prosecution witnesses themselves.
(f) P.W.2 Periyasamy, Superintendent of Customs and Central Excise has
deposed that he was not available in the Office as he thought after 12.30 P.M.

alone is auspicious time to take charge from A-1, who was then transferred to
another post. P.W.3 Suresh, Inspector has deposed that he was the only person
in the Office, as there was no other Officer available to man the Office. It
is not disputed that there was a requirement that at least one Officer must be
present in the Office at all times. So, there was full corroboration. The
log book of the Office also shows the same, and P.Ws.2 and 3 have also
confirmed the same. The prosecution has relied on only the two independent
witnesses for the alleged seizure namely P.Ws.6 and 7, but both have turned
hostile. It is pertinent to point out that P.W.6 the Manager of the
Thiruchenduran Mansion has stated that about 12.00 noon on that day, A-1 with
two or three persons went to his room; that thereafter, NCB Officers came to
the room; and that they told all the three persons to go out of the room. He
has also added that the next day at the Deputy Police Commissioner's Office,
he signed the mahazar. P.W.7 has also deposed that he was only called on
9.5.98 to the Office of the Deputy Commissioner of Police, where he signed the
mahazar as a witness. D.W.4 Sekar has categorically deposed that he was
standing at Vasantha Nagar bus stop at about 11.30 A.M.; that A-1 chased a
person carrying a plastic bag; and that the said person dropped the plastic
bag. He has narrated all the sequence of events. The said Sekar accompanied
by another witness has gone to the said lodge. His evidence was consistent
and acceptable. Even immediately after the seizure, A-1 has stated that he
had indeed got narcotic drugs only by way of seizure. Having regard to the
fact that A-1 was Superintendent of Central Excise who had effected number of
seizures, his explanation was perfectly acceptable and no accused would have
done anything more to prove his defence.
(g) As regards the question why did not A-1 prepare the mahazar on the
spot namely the bus stop, since it was a bus stop, which was crowded that
time, it would not be conducive to write a mahazar. That apart,
Thiruchenduran Mansion where A-1 was staying, was only 150 feet away. P.W.5
Sekar has stated that as there are no facilities to write the mahazar at the
place where the seizure was made, they used to write the mahazar at a
convenient building or place nearby. The fact that on the day the bus stop
was heavily crowded due to Chithirai festival is spoken to by P.Ws.8 and 22
and D.W.4 Mani. It is pertinent to note that A-1 has come to the lodge along
with two mahazar witnesses and P.W.8 also. After seizing the packets and
understanding that it contained heroin, A-1 has called two mahazar witnesses
namely D.W.4 and one Sekar. D.W.4 has a watch repair shop in the bus stand
itself and has witnessed A-1 chasing the person and the person dropping the
bag and fleeing. It is true that A-1 has not recorded the information
received by him before starting from the Office of the Customs. It was
because of the reason that it was very vague and did not name any informant or
the accused. Since the seizure has taken place in a public place, it was not
necessary to be taken down in writing. For seizure in a public place like bus
stand only Sec.43 of the Act would apply. P.W.5 Investigating Officer,
Customs Department admits that it is not the practice of the department to

record the information if the seizure takes place at a public place like bus
stand. (h) Exs.P19 and P33 were relied upon by the prosecution to show that
those informations have been reduced into writing even though the information
has not named any specific accused. This material does not further the case
of the prosecution for more reasons than one. Both Exs.P19 and P33
information was more detailed and specific. Under Ex.P19 even the time within
which the transportation will take place as also the destination of the drugs
was mentioned. Therefore, it was a precise information. In Ex.P33, the
information recorded specifically mentions where the Ganja had been kept
concealed, the quantity of goods, the value and wherefrom it has been brought.
Both Exs.P19 and P33 show that the information was given by the informer. If
the seizure is effected pursuant to the information from the informer, who was
willing to disclose his identity, then the information has got to be recorded
to disburse the award to him if necessary. But in this case, as seen in the
statement of A-1 under Ex.P183, the person who phoned to him was unwilling to
disclose his identity and kept the phone down. It is pertinent to note that
while questioning under Sec.313 of Cr.P.C., A-1 has answered that it is the
practice of the department to reduce it into writing only the authenticated
information, and the information for which the informers were unwilling to
disclose their identity, would not have been normally recorded. Therefore,
the contention of the State was not acceptable.
(i) It remains to be stated that P.W.50 who had come all the way from
Madras to Madurai, has not chosen to record the information, and there is also
no evidence that P.W.50 or P.W.1 was carrying arms for this particular
assignment. P.W.1 has well admitted that they have not brought any kit for
testing the goods, if they are narcotic drugs. Thus, the conduct of P.Ws.1
and 50 itself is an indication that there is no uniform procedure followed by
all the Investigating Officers under the Act. When A-1 was examined under
Sec.313 of Cr.P.C., the attention of the accused was not drawn for the
circumstances to draw adverse inference against him on account of Exs.P19 and
P33, and hence, it is not a circumstance against the appellant/A-1. P.W.8
Vivekanandam has fully supported the defence version. P.W.3 has admitted that
he was the only Officer left in the Office. P.W.3 has come to the Office only
after 12.30 P.M. on 8.5.98 as he thought it was auspicious only after 12.30
to take charge. Thus, there is not even one circumstance which is not capable
of explanation on a reasonable hypothesis.
(j) The defence has established its version fully by examining D.W.4
whose evidence was amply corroborated by the evidence of P.Ws.2, 5, 6, 7 and
8. D.W.4 is an independent witness. He was the owner of a watch repair shop
in the bus stop. Hence, his presence in the spot, where A-1 seized the goods
was natural. It can not be disputed that D.W.4 was not known to A-1
previously. No suggestion has been made to D.W.4 in this regard, nor is there
any material produced by the prosecution to show that A-1 knew him earlier.
Hence, when A-1 stated that he called him at that spot, it must be correct.
Nothing in the cross-examination of D.W.4 has shaken the witness or brought on

record any feature to discredit his version. The name of D.W.4 has been
mentioned by A-1 at the time of seizure in his room itself. Hence, the
contention of the State that A-1 had not mentioned the name of either D.Sekar
or Mani D.W.4 as witnesses to the seizure at Pazhanganaatham bus stop at the
earliest point of time, and Ex.P1 mahazar does not contain any averment that
A-1 had so mentioned the names of these two witnesses cannot be accepted.
(k) The circumstances point that A-1 must have informed the names of
both the witnesses, but it was not incorporated in Ex.P1. Even from Ex.P183
statement it is very clear that A-1 has indeed mentioned the names of the
witnesses Sekar and Mani at the earliest point of time even before recording
Ex.P1. A careful reading of Ex.P183 statement would reveal the same. The
same would conclusively negative the theory of the prosecution that A-1 had
not mentioned the names of the witnesses at the earliest point of time. Under
Ex.P183, he had mentioned the names of both persons. From the time of
apprehension at the Mansion till he was remanded to custody on the night of
9.5.98, A-1 was in the custody of P.W.50, and no outsider has met him nor did
he consult any other person. Since no material is available to show that A-1
had known D.W.4 earlier at all, A-1 could have mentioned D.W.4's name only
because he was present at the time of the seizure as a witness. Under such
circumstances, the non-mentioning of the names of the witnesses in Ex.P1
itself loses significance. The prosecution has deliberately not examined
Sekar and D.W.4. The explanation tendered by P.W.1 was not acceptable.
P.Ws.1 and 50 had already rejected the case of A-1 without any examination and
consideration and were bent on prosecuting him from the beginning. Therefore,
the non-examination of D.W.4 and Sekar immediately after the seizure, was an
important circumstance against the prosecution. The prosecution has relied
upon Ex.P215, a letter alleged to have been written by D.W.4. The occurrence
was on 8.5.98, but the first effort was made to contact D.W.4 only on 21.7.98.
This would strengthen their theory and not to find out whether A-1's version
could be true. It is pertinent to note that D.W.4 has asserted and reiterated
what he had witnessed at the bus stand on 8.5.98. It was the case of the
prosecution that the said Sekar was a stock witness, and the same was revealed
from Exs.P21 and P45. If the signature in Ex.P21 and P45 was compared with
the signature in the letter written by Sekar to NCB Department under Ex.P178,
it would be clear that all of them are by the same person. Therefore, the
person who wrote Ex.P178 must be Sekar as mentioned in Exs.P21 and P4 5.
Sec.73 of the Evidence Act was also invoked by the prosecution in that regard.
But, the same was misconceived. It was not suggested to any witness that the
name of Sekar in Exs.P21 and P45 is the said Sekar mentioned by A-1 as working
in Cinema Theatre. Without this basic premise, no argument could be built.
Sec.73 of the Evidence Act could be used only to ascertain whether the
signature is that of the person whom it purports to have been written, and it
could be done by comparison with the admitted signature. But, Sec.73 of the
Evidence Act cannot be used to require the Court to compare the signature
especially to fix the identity of the person who wrote it. The circumstance

that the signatures in Exs.P21 and P45 are the same as that of the signature
in Ex.P178 letter to NCB was not a circumstance that could be put to the
accused under Sec.313 Cr.P.C. The inference that because the signatures in
Exs.P21, P45 and P178 were that of Sekar, they were all by the same person and
the said Sekar was therefore known to A-1 even earlier are all not the
circumstances, which were put to the accused under Sec.313 of Cr.P.C., and
hence, those circumstances should be eschewed from consideration.
(l) There are serious infirmities in the prosecution case, which cast
considerable doubt on the validity of the theory propounded by them.
According to the prosecution, the information is said to be Ex.P73 , and it
was mentioned as though at about 7.00 A.M. P.W.12 gave the information to
P.W.50, while they were sitting in a Car at the bus stand. The author of the
information has been examined as P.W.12, which is extraordinary. That apart,
P.W.12 had not supported the prosecution case and has turned hostile, and
hence, what is contained in Ex. P73 becomes a false document, and it cannot
be considered as an information. If so, the real information is not before
the Court and whole of the evidence of P.W.12 would indicate violation of
Sec.42 of the Act, thereby violating the entire investigation and trial.
Neither Ex.P1 mahazar nor Sec.57 report given by P.W.1 under Ex.P7 and Sec.57
report under Ex.P210 by P.W.50 mentioned about the information much less about
its contents. Neither the remand report nor the arrest memo mentions anything
about the information. When A-1 was questioned on 9.5.98, no question was
asked about A-2. It is unusual since according to P.W.50, Ex.P73 contained
also about the involvement of A-2 in the occurrence. The case of the
prosecution that A-2 has been mentioned in the information was palpably false
in view of the evidence of P.W.22 who clearly says that from 2nd onwards A-2
was continuously in Thanjavur and in fact accepted a farewell party given in
her honour by the Officers on the afternoon of 8.5.98. Thus, the wanton
implication of A-2 at a later point of time is an explanation why the
information report was not sent to the Court along with the original documents
at the time of remand and why no contemporaneous document mentioning about the
information in the case at all. The non-examination of the witnesses Sekar
and Mani named to categorically by A-1 even at the time of seizure and while
giving a statement under Sec.67 of the Act in Ex.P183 is fatal to the
prosecution. Only to discredit the version of A-1 that he recovered 2 kgs.
of powder which he believed to be heroin at the bus stand a few minutes back,
P.W.50 made a bald statement. The Officials deliberately have not chosen to
draw the site plan, nor have they chosen to examine the only other person
available along with A-1 namely Sipoy Swaminathan. Thus, what was available
for the prosecution was the solitary evidence of P.W.50, which was not
acceptable. The prosecution has deliberately impersonated with full knowledge
and let in evidence through such person to implicate A-2 and also to show that
the occurrence was true.
(m) P.W.51 Raghavan, Superintendent recorded a statement from a person
calling himself Thillairajan son of Thanuvan, aged 25 years, a resident of

Ilayanayinarkulam, Vadakkur, Radhapuram Taluk, Tirunelveli, which is marked as

Ex.P228, and the same was dated 7.6.98. According to the statement, he knew
Sam Emanuel P.W.13 and also A-2, and there was a publication in the newspaper
and magazine Nettrikan on 29.5.98 in which Sam Emanuel's name has also been
mentioned. On enquiry from Sam Emanuel who was afraid of the article in the
magazine, P.W.13 answered him that on 7.5.98 he met A-2 at Nagarcoil, and he
was asked to go to Madurai to carry the belongings and luggage of A-1 who is
going out of Madurai on transfer and while doing so also carried 2 kgs. of
heroin that was kept with A-1 and he offered him Rs.300/- for expenses; that
he refused his offer; and that on hearing that A-1 was caught with 2 kgs. of
heroin, he wanted to go and tell NCB what he knew about the occurrence. In
the statement it is further mentioned that he met also Velmurugan D.W.2
accidentally and he said that he is going to Madurai. On 8.5.98, he again
happened to meet Velmurugan at 8.3 0 A.M. at Valliyur. He is said to have
told Thillairajan that on the previous day he met A-1 at the lodge and A-1
gave him 5 kgs. of heroin to be taken to Tirunelvelli and in the course of
the journey, he became afraid and phoned to Thisayanvillai and somebody came
and took the 5 kgs. from him. The said Velmurugan was missing from his
address, and it is his information that A-2's men have taken. The statement
under Sec.67 of the Act recorded by P.W.51 was marked in the case to implicate
A-2 and to probablise that A-2 was keeping the contraband goods in his room in
the lodge. During the course of evidence, the accused has examined D.W.1
Thillairajan. His evidence categorically shows that somebody has impersonated
him; and that a statement was recorded by P.W.51. D.W.2 has categorically
spoken to the fact that he was taken to the NCB Office by P.W.12 Dominic to
write the statement as if he is Thillairajan. Velmurugan in his statement
says that P. Ws.50 and 51 and a few other Officers persuaded him to sign as
Thillairajan, receive summons as Thillairajan and to write as dictated by
P.W.51 and also sign as Thillairajan. His defence statement fully establishes
that Ex.P228 was a false document given by D.W.2 Velmurugan impersonating for
Thillairajan at the instance of P.Ws.50 and 51. The falsity of the evidence
adduced would clearly speak of the deliberate act of impersonation and the
conduct of the Officials in foisting a case against the accused. The
prosecution has deliberately introduced as though firstly Sam Emanuel and
later Vel Murugan were called by A-2 to help A-1 to transport his things and
luggage on the night of 8 .5.98 as he was transferred out of Madurai. It has
to be pointed out that A-1 was not transferred out of Madurai at all, but he
was merely transferred from a Preventive Officer to look after the legal work
in the Courts in the same department at the same place Madurai. In the
instant case, there was a strong motive to implicate the appellants due to his
enmity with the then Commissioner of Customs J.M.K. Sekar. There was such a
simmering dispute as accepted by P.W.50.
(n) The prosecution has much relied on the statement recorded under
Sec.53A(1)(B) of the Act. The persons who have given evidence however have
resiled from those statements in the witness box, and they were treated as

hostile and cross-examined by the prosecution. The trial Court has held that
the statement was admissible in evidence, since it was a substantive piece of
evidence, and it could be preferred over the oral evidence given by them
during trial. Thus, the previous statement of a living person has been used
in the case for the purpose of contradicting as provided under Sec.145 of the
Evidence Act. In arriving at such a conclusion, the trial Court has given two
reasons that the Officers were entitled to record the statements from
witnesses under Sec.67 of the Act, and the Officers being not police officers,
there was no bar in admitting the statement. The trial Court has also held
that it could be used as a substantive evidence solely on the basis of the
statement of objects and records for introducing the amendment in 1989 wherein
Sec.53A was introduced. Both the reasoning of the trial Court appears to be
erroneous for number of reasons. The statement of objects cannot be taken
into consideration for the purposes of interpreting a particular provision of
Section which was laid down in the authoritative pronouncement of the Supreme
Court in 1 952 SC 369. The said decision of the Apex Court was followed by
this Court in a recent judgment reported in 2002(4) CTC 141. It is pertinent
to note that Sec.53 of the Act has not mentioned any nonabsenti clause, and
hence, it does not say that this provision would prevail over the evidence Act
or any other law contrary to it. It is well settled that the Evidence Act is
a complete Code. What is not evidence as per the provisions of the Evidence
Act could not be utilised in any prosecution in a Court of law to arrive at a
conclusion. Hence, it would be clear that the previous statement of any
person could be used only for the purpose mentioned unde r Sec.145 of the
Evidence Act and nothing more. Even assuming that the previous statements of
a witness is admissible, the Section says that the previous statement could be
admitted only if a witness is dead or cannot be found out or if alive and
called as a witness, and the Court in the circumstances of the case think it
just to admit. As regards the question what could be the circumstances the
Court would admit the evidence, the circumstances must be such to make the
previous statement admissible. The term "circumstances" used in the Section
has nothing to do with the validity of the statement or how it was given.
Therefore, the enquiry whether it was voluntary or not is not germane to the
Section. On a proper construction, it is necessary for the Court to briefly
record what are the circumstances made out by the prosecution to make the
previous statement admissible. Unless the Courts come to the conclusion, the
statement in the witness box in Court cannot be admitted at all. Such thing
has not been done in this case, and hence, the previous statements of the
witnesses are not admissible at all. If allowed, this would do great
violation to the entire Evidence Act. A right of the accused to test the
veracity of deposition by cross examination is fundamental or a fair
proceeding where if such a right is denied in a case, the same may result in
deprivation of personal liberty by way of punishment by way of imprisonment.
Hence, such a procedure will be wholly unconstitutional and violative of
Article 21 of the Constitution. Therefore, the trial Court has wrongly held

that it is substantive evidence and it need not necessarily be used for the
purpose of contradiction or corroboration.
(o) It has to be pointed out that Sec.53A is not confined to Customs,
NCB and such other officers who are not police officers. If Sec.53 A is
literally construed, then even the statement recorded by the police would
become admissible, which would be violative of Sec.161 of Cr.P.C. The
analysis of the sample and the Chemical Examiner's report also throw
considerable doubt on the prosecution case, and the goods recovered is not a
narcotic substance namely heroin at all. P.W.11 Chemical Examiner has stated
that except in one 10 gram packet all others merely contained traces of
Di-acetyle morphine. P.W.11 has clearly admitted that they have instrument
even to calculate 1/1000% of Di-acetyle morphine. This would clearly indicate
the motive of the NCB to blame the appellants. Hence, the substance, the
subject matter of the case cannot be called as heroin at all. Heroin as a
drug must do what the drug intended to do namely to produce intoxication. The
process can never result in intoxication. In this view also, the prosecution
has totally failed. In view of the above reasons, the appellants are
therefore entitled to an acquittal by this Court, and the appeal filed by the
A-1 and A-2 has got to be allowed.
6. The learned Senior Counsel has further made the following
submissions:
(a) Even though in Ex.P73 information the name of A-2 has been
mentioned as if she was trafficking in heroin along with A-1 by sending the
same to the smugglers near Thoothukudi, there is no reference about the A-2's
part in the present 2 kgs. of heroin and her alleged involvement in
connection with the offence in question. Hence, Ex.P73 should have come into
existence belatedly, after much deliberations and after other documents like
Ex.P1 mahazar, Ex.P8 remand report of A-1, Ex.P72 letter from Dominic to
Revenue Secretary, Ex.P183 the statement of A-1 and Ex.P184 arrest memo. In
Ex.P74 First Information Report relating to Valliyur Crime No.141/98 given by
Dominic also there is no mention about the present allegations asking P.W.12
to arrest him to bring two kgs. of heroin from Madurai to Nagercoil for which
he will be paid a sum of Rs.300/-. There was no reference about the
telephonic conversation allegedly made by A-2 to P.W.12, nor had he mentioned
about the information given by P.W.12 in Ex.P73 and P.W.50 Krishnamoorthy
about the involvement of A-1 and A-2. A very reading of Ex.P74 discloses that
it is only a protection seeking petition from the accused party, and it has no
reference to the present prosecution case. Even in Ex.P77 a direction
petition filed by P.W.12 Dominic against the second accused, there was no
reference to the telephonic conversation and that she was willing willing to
finance a sum of Rs.300 /- as spoken to by the present prosecution case.
Hence, the alleged involvement of A-2 as projected by the prosecution is not
referred to in Ex.P77 also.
(b) The star witness in the case as per the prosecution case is
P.W.12, and the basis for the conviction of A-2 was the statement given by

P.W.12 under Sec.67 of the NDPS Act coupled with the evidence of P.W.13 Sam
Immanuel. The statement is alleged to have been given to the preventive
officials namely P.Ws.1 and 50. Both the witnesses P. Ws.12 and 13 did not
support the prosecution, and they turned hostile. But, the evidence of
P.Ws.12 and 13 has fully probablised the case of the defence. They have
clearly spoken to the effect that those statements were obtained by them on
the tutoring of the preventive officials who are the prosecuting agency in the
instant case, and hence, no reliance can be placed on their evidence to
connect the second accused in the crime in question. To prove the offence
under Sec.193 of I.P.C. with regard to the charge No.5, the prosecution has
examined, P.W.15, 26, 33, 36, 37, 41, 43, 44, 46 and 47. All the witnesses
did not support the prosecution case, nor have they referred the second
accused or identified her in the Court. Hence, their evidence cannot be
relied on for the purpose of convicting A-2. Ex.P205 is the requisition
letter from NCB Officials to Special Divisional Engineer ( Telephones) for
obtaining the printouts of telephone department with regard to the telephone
connections available in the house of A-2. Exs.P207, P208 and P224 the
printouts of the telephone department given to the NCB Superintendent were
obtained first on 23.7.98, and thereafter P.W.12 Dominic was examined by the
preventive officials on 24.7.9 8 under Sec.67 of the NDPS Act, which shows
that it was not the Dominic who gave information first, from which the
telephone printouts have been traced. The printouts have been obtained
earlier before the Dominic was examined under Sec.67 of the NDPS Act. This
would show that Ex.P73 could not have been obtained in the manner, date, time
and place as alleged by the NCB officials. Thus, the said documents are
belated and fabricated to suit the prosecution story.
(c) P.W.12 Poppu Elango, Assistant Commisioner of Central Excise has
clearly deposed in the cross examination that as per Ex.P112 given by him, the
second accused has left her duty at Tanjore and afterwards on 8.5.98 during
holidays, she did not obtain any permission to visit her native place, and if
she wanted to leave the headquarters, she has to get permission from the
department, and there was no such permission obtained by her, and on 8.5.98 at
the time of transfer, there was a farewell party given to her. Hence till
8.5.98 A-2 was available only at Tanjore, in which case the conversation
alleged to have been made by A-2 with P.W.12 on 7.5.98 could not have been
made from Nagercoil, which cuts the case of the prosecution. It was pointed
out by the prosecution before the trial Court that the second accused was
absconding; and that she was not available in her native place. In order to
prove the same, the prosecution has examined P.Ws.17, 20, 21 , 23, 24, 25, 30,
32, 34, 38 and 42. The second accused was taking all steps available under
law to protect her interest by filing anticipatory bail petitions before this
Court. Subsequently a direction petition preventing from effecting arrest
against her was filed, and a quash petition was also filed by ber before this
Court as against the complaint filed by the NCB Officials. The mere
allegation that the second accused was absconding all along was not true. She

was effectively taking steps under the provisions of the law which cannot be
termed as absconding. The allegations of abscondance cannot be taken as a
circumstance against the second accused for inferring that she was guilty of
the offence alleged against her. The Apex Court has held in its
pronouncements that mere abscondance will not give an inference that the
person who was absconding was guilty of an offence. In this case, even the
allegations of abscondance are not admitted, and the allegations do not have
any legs to stand before the scrutiny by this Court. There is no legal
evidence connecting the second accused with the crime for constituting the
ingredients of charges of Sec.29 of the NDPS Act, Sec.27-A of the Evidence Act
and Sec.28 of the NDPS Act. Thus, the lower Court was perfectly corr ect in
acquitting her of the charges against her under Sec.193 of I.P.C., and the
appeal filed by the State has got to be dismissed.
7. In support of his contentions, the learned Senior Counsel has
relied on the following decisions:
1) AIR 1941 PC 16; 2) AIR 1971 SC 44; 3) AIR 1981 SC 911; 4) 2000 SCC
(CRI) 496; 5) JT 2002 (7) SC 245; 6) 1995 SCC (CRI) 466; 7) AIR 195 2 SC 369;
8) 2002 (4) CTC 141; 9) AIR 1965 SC 1251; 10) 1959 (2) MLJ 165 and 11) 1996
SCC (CRI) 489.
8. Answering to the above contentions of the appellants' side, the
learned Special Public Prosecutor Mr.P.N.Prakash with vigour and vehemence
made the following submissions:
(i) The appellants who are husband and wife are the Superintendents of
Central Excise and Customs Department, and thus they were worldly-wise and
cannot be equated to an ordinary and ignorant layman. The prosecution has
come with the specific case that on 8.5.98 on receipt of information from
P.W.12, P.W.50 accompanied by P.W.1 proceeded to the Thiruchenduran Mansion
and found the room No.116 where A-1 was staying, locked. P.W.50 asked P.W.1
to secure an independent witness. P.W.1 brought P.W.7 Thalayari to
Thiruchenduran Mansion. At about 1 2.00 P.M. A-1 had gone inside the room in
the Mansion. At about 12.1 0 P.M., they tapped the door of that room. A-1
was found the room. After following the procedural formalities, as
contemplated under the law, they seized the contraband namely 2 kgs. of
heroin, which was in the illegal possession of A-1, under Ex.P1 mahazar. The
same was signed by P.Ws.1, 50 and two witnesses namely P.Ws.6 and 7. After
serving a copy of the mahazar on A-1, they took him to the Deputy
Commissioner's Office at Madurai, where his statement was recorded, and then,
he was remanded to custody.
(ii) It is not in dispute that the said contraband was recovered from
A-1 after strictly following the procedural formalities. It was done by
P.W.50 in the presence of P.Ws.1, 6 and 7. The fact that a copy of the
mahazar was served on A-1 immediately is also not disputed by the first
accused. It is true that the mahazar witnesses namely P.Ws.6 and 7, P.W.12
the informer and P.W.13 have turned hostile. Sec.53A(1)(b) of the NDPS Act
very well empowers the Courts to admit the statements given by those witnesses

as evidenc e in the interest of justice. The statements recorded under Sec.67

of the N.D.P.S. Act are more than a statement recorded under Sec.161(3) of
Cr.P.C. or Sec.164 of Cr.P.C. Statements recorded under Sec.161(3) Cr.P.C.
are not signed by the parties. They are recorded in the handwriting of the
Police Officers, while the statements under Sec.164 of Cr.P.C. though placed
in a better position than under Sec.161(3) of Cr.P.C., have been recorded by
the Judicial Officers after giving due warning in the case of an accused, and
they are also used either for contradiction or corroboration only in the
circumstances when the witness retracts his previous statement.
(iii) Sec.53A of the NDPS Act is pari materia to Sec.138B of the
Customs Act. In the Course of administration of revenue enactments like the
Customs Act, Gold Control Act, people come forward to pass with the
information during the time of investigation. But, once the trial commences,
the smugglers create fear in the minds of the witnesses by causing illegal
threat, and so many of them turned hostile to the prosecution. The revenue
officials cannot give protection to the witnesses, since the protection is a
law and order problem falling exclusively under the domain of the police. The
frequent failure in prosecuting the smugglers in a Court of law on account of
the witnesses turning hostile caused deep concern in the minds of the
Parliament, and the same necessitated to introduce Sec.138B in the Customs
Act. There was an amendment introducing Sec.53A in the NDPS Act, and hence,
the statements recorded by the NCB Officials under Sec.53A from a witness is a
substantive piece of evidence. The object and scope of Sec.138B of the
Customs Act is applicable to Sec.53 of the NDPS Act.
(iv) In the instant case, all the statements were written by the
witnesses in their own handwriting and signed by them also, and the
prosecution has also proved that they were free from threat, influence or
coercion. The very object of the introduction of the Section was to make a
departure from the traditional concept of criminal jurisprudence, and hence,
though the witnesses have turned hostile, it was to be treated as a
substantive piece of evidence. Therefore, the contention of the appellants'
side that since the witnesses have turned hostile, it cannot be taken as a
substantive piece of evidence has got to be rejected.
(v) In the instant case, the first appellant/A-1 has not only denied
the prosecution case, but came with a false theory stating that on 8 .5.98
around 10.00 A.M., he received an information that a person carrying 2 kgs.
of heroin was standing near Vasantha Nagar bus stand; that in order to work
out the information, he had gone to the place in his Office Jeep, which was
driven by P.W.8 Sepoy around 11.30 A.M., that on seeing A-1, the person
carrying the plastic bag has dropped it and fled; that though A-1 attempted to
apprehend him, he could not; that A-1 picked up the packet and called two
persons namely Sekar and D.W.4 Mani to be the witnesses; that along with those
witnesses he had gone to his room; and that at that time P.Ws.1 and 50 made
entry into his room and seized the contraband in question. Thus, two theories
were before the Court one by the prosecution and the other by the defence.

The prosecution by adducing sufficient evidence has not only proved its case,
but has proved the defence theory intrinsically unbelievable. The appellants
relied on the version of A-1 in Ex.P1 mahazar, his statement under Sec.67 of
the NDPS Act marked as Ex.P183, the statement under Sec.164 of Cr.P.C. of
P.W.8 marked as Ex.P60 and the evidence of P.W.8 and D.W.4. There are so many
circumstances available to indicate that the drop theory put forth by the
appellants/ accused was unbelievable and false. A-1 has not recorded the
alleged information he received, nor has he taken with him any Officer for
assistance in his operation, nor has he informed P.W.3 Srinivasan about his
mission. He has not taken with him all drug testing kits, etc. It is highly
improbable that A-1 who was admittedly on orders of transfer on 8.5.98 has
left the Office stating that he would come back by 12.30 and hand over the
charge to P.W.2 Periyasamy, who came to succeed him. It was highly strange
that an anonymous carrier was standing in a crowded bus stand, where there was
police patrol on account of a function in a nearby marriage hall.
(vi) The conduct of A-1 to go to a shop for purchase of M.O.10 bag on
his route throws a considerable doubt. It is pertinent to point out that the
contraband seized from him was in M.O.10 bag kept in his room. The earliest
document recorded by the officials was the mahazar, wherein the alleged drop
theory propounded by A-1 is found a place. But, it remains to be stated that
at that time, he did not say that he brought two witnesses by name Mani and
Sekar. But, he subsequently introduced those two names in Ex.P183 statement
recorded under Sec.67 of the NDPS Act. It has to be pointed out that those
two persons were introduced as if they were totally unknown to him. These two
witnesses in their statements under Sec.164 of Cr.P.C. marked as Exs.2 01 and
203 respectively have stated that they were waiting for a bus to
Thiruparankundram, and they were called by A-1 to be a witness. It has been
clearly established from the evidence of P.W.5 Sekar, P.W.39 Loganathan and
Exs.P21 and P45 mahazars that the said Sekar was well known to A-1 even
previously. Despite the earnest efforts, the said witnesses could not be
secured. Despite the receipt of summons under the NDPS Act, they have chosen
to give statements under Sec.164 of Cr.P.C. and have sent two letters under
Exs.P215 and P178A to the NCB Office where they have asked the NCB Officers to
accept the statement given under Sec.164 of Cr.P.C. as statement of facts.
P.W.50 has categorically deposed that he was maintaining surveillance near
Thiruchenduran Mansion and himself had seen A-1 getting down from the Jeep and
walking straight towards the mansion, and there was no such incident as
contended by A-1. The statement of P.W.8 Vivekanandan recorded under Sec.67
of the NDPS Act has also corroborated the version of P.W.50. All the above
would go to show that the drop theory propounded by A-1 was false.
(vii) The prosecution has clearly proved through necessary evidence,
the factum of conspiracy hatched up by A-1 and A-2 who are not only Senior
Officials of Central Excise and Customs Department, but also husband and wife.
It is an admitted fact that P.W.12 Dominic has been an informer for A-2. The
involvement of A-2 in the scheme of conspiracy was disclosed by P.W.12 to

P.W.50 while giving information on 8.5.98. The information report was marked
as Ex.P73. In this regard, the evidence of P.W.48 Sivasankaran, who was the
Sub-Divisional Engineer, Thuklay Telephone Exchange in Mary 1998 would reveal
that two telephones were functioning from the residence of A-2 at No.41-D,
Aloor Road, Chungankadai; and that the telephone calls were made from the
residential telephone of the accused to the residential telephone of P.W.12 as
shown by Exs.P207 and P208. A letter under Ex.P72 wherein P.W.12 has stated
that he had been an info rmer for A-2 in an earlier case investigated by A-2
in Customs Crime No.3/96. P.W.12 has also disclosed in his statement under
Sec.67 of the NDPS Act that on 7.5.98 A-2 had telephoned him twice and sought
his help for transporting 2 kgs. of heroin from the possession of her
husband; and that when he declined, she asked him to contact P.W.13 in that
regard. P.W.13 has also in his statement under Sec.67 of the Act marked as
Ex.P79 has corroborated the version of P.W.12, inasmuch as he has declined to
concede the request of A-2.
(viii) At the time of trial P.W.12 came with a false version that he
was asked by the Officials of NCB to write Ex.P72 letter and give a fabricated
statement as found under Ex.P76. It remains to be stated that on 14.5.98
P.W.12 has gone to Valliyoor Police Station and lodged Ex.P74 FIR, wherein he
has alleged that A-2 was making an attempt on his life after coming to know
that he was the informer. In Ex.P74, he has nowhere denied that he was the
informer in this case. On investigation, the police has also filed a report
before the competent Court arraying A-2 as A-1 therein. P.W.12 has also filed
a petition under Sec.482 of Cr.P.C. in this Court praying for a direction to
arrest A-2. He has admitted this fact in his evidence. This would go to show
that this was not at the instigation of the NCB officials. The above factors
would indicate that P.W.12 has turned hostile and has given false version
before the Court, despite his earlier statement. P.W.13 Sam Immanuel in his
earliest statement under Ex.P79 which was recorded as early as 11.6.1998
disclosed that he was asked by A-2 to accomplish the task of transporting the
heroin from the possession of A-1. P.W.13 in order to protect himself has
sent a telegram under Ex.P78A though in his evidence has denied the same. On
7.6.98 a person by name Thillairajan appeared before P.W.51 and gave a
statement that his friend Sam Immanuel was intending to come to Chennai, but
was prevented by the henchmen of A-2. In fact P.W.13 did not go over to
Chennai. P.W.51 thought it fit to go over to his residence where P.W.13
submitted Ex.P82A and P83A documents. Though P.W.13 has turned hostile to the
prosecution case and has stated that he gave a statement as dictated by
P.W.51, his version if tested in the light of various facts, would be
falsified. He has given the Department a manuscript of a letter under Ex.P82A
written by A-2 to be sent to the higher officials complaining against one
Amalraj. A comparison of Ex.P82A and the statement given by A-2 in jail under
Ex.P149 would clearly show that Ex.P82A was written by A-2. These documents
namely Exs.P82A and P83A would throw light about the alleged activities of one
Amalraj an Officer in the Customs Department.

(ix) A-2 in her written statement under Sec.313 of Cr.P.C. has stated
that the instant case was foisted at the instance of J.M.K.Sekar and Amalraj.
The internal evidence found in those documents is supported by the reference
about Amalraj in her own statement under Sec.313 Cr.P.C. It is pertinent to
point out that P.W.13 Sam Immanuel has not completely repudiated the fact that
he has given any statement at all, but has only stated that he has given a
statement as dictated by P.Ws.12 and 51. Had it been the intention of P.W.51
to obtain an untruth statement from P.W.13, he would have taken care to see
that the father's name of Sam Immanuel and other details were correct. Hence,
the assertion of the prosecution that Sam Immanuel was threatened by A-2 and
was coerced and forced to turn hostile to the prosecution during the course of
trial deserves to be accepted. Out of 52 witnesses examined by the
prosecution, 12 witnesses have turned hostile, and out of 12, 4 of them have
gone to the extent of giving statements under Sec.164 of Cr.P.C. in order to
torpedo the prosecution case. From the analysis of the statements under
Sec.67 of the NDPS Act, it would be abundantly clear that A-2 informed that
A-1 was in possession of the contraband, and A-2 has taken steps for
transporting it safely from the possession of A-1, and therefore, A-1 and A-2
have conspired to traffic the 2 kgs. of heroin, the subject matter of the
proceedings.
9. Assailing the judgment of the trial Court acquitting A-2 under
Sec. 27A of the N.D.P.S. Act and Sec.193 of I.P.C., the learned Special
Public Prosecutor made the following submissions:
(i) The lower Court without proper appreciation of the position both
legal and factual has acquitted the accused. Sec.193 of I.P.C. can be
invoked for giving false evidence in a judicial proceedings and fabricating
false evidence with an intention to use it at any stage of judicial
proceedings. In the instant case, the act of the second accused falls under
the second category namely fabricating false evidence with an intention to use
it at the subsequent judicial proceedings initiated against them. The
specific case of the prosecution is that in order to use the evidence of P.W.6
Krishna Rao, P.W.7 Ayyannan, P.W.8 Vivekanandan, Mani, Karuppiah, Sekar and
P.W.33 Prabhakar in favour of the accused, if the trial commenced before the
Special Court on a complaint by the NCB, A-2 has made those persons to give
false statements under Sec.164 of Cr.P.C. before the learned Magistrates.
The Hon'ble Supreme Court has clearly held that the statements under Sec.164
of Cr.P.C. cannot be recorded at the instance of the private individuals, and
only Police Officers can request to record the statement. In the light of the
legal position enunciated by the Supreme Court in a case reported in (1999) 4
CRIMES 12 (JODENDRA NAHAK VS. STATE OF ORISSA), it would be relevant to
analyse the materials on record to establish a charge against A-2. (ii)
The prosecution has examined P.W.15 Udayasuriyan and P.W.33 Prabhakaran who
have spoken about the activities of A-2. P.W.33 a Tuticorin based Car broker
and a real estate agent, owned an Ambassador Car bearing Registration
No.TN-31-Y-3906. P.W.33 has well admitted this fact in evidence and his

statement under Sec.67 of the NDPS Act marked as Ex.P161. He has given a
graphic description of the places visited by A-2 in procuring the witnesses.
In that exercise, his Car has been used, and the same was driven by P.W.15.
Though P.W.33 has turned hostile, the statement recorded under Sec.67 of the
NDPS Act reflects the true picture of his evidence in the witness box. It is
pertinent to point out that P.W.33 has accepted that he has given the
statement written in his own handwriting, but has stated that he was tortured
by P.Ws.50 and 51 and was wrongfully confined in Alwyn Lodge till 2.6.1998.
Admittedly, there was no previous enmity or animosity between P.W.33 and the
NCB Officials. Hence, there was no necessity for the NCB Officials to pick
and choose P.W.33 for the purpose of making a false statement against A-2 .
P.W.33 was arrested by Valliyoor Police on 1.6.98 as deposed by P.W.49 Sheik
Ahamed in connection with the complaint given by P.W.12. Pursuant to his
arrest on 1.6.98, his Ambassador Car bearing Registration No.TN-31-Y-3906 was
recovered by the Valliyoor Police on 1.6.98 following the disclosure made by
P.W.33 under Sec.27 of the Evidence Act. P.W.33 was remanded to judicial
custody on 2.6.98 in connection with the said case. Therefore, the contention
of P.W.33 that he was kept in illegal confinement till 2.6.98 at Alwyn Lodge,
Tuticorin can at no stretch of imagination be true. In his statement P.W.33
has categorically spoken about the fact that he stayed in various lodges in
Madurai and Chennai. This fact is independently corroborated by his own
admission in the witness box, apart from the evidence of P.W.19 Kathirvel and
P.W.36 Sekar. From the analysis of the evidence, it would be clear that his
version in Ex.P161 statement was more reliable than the subsequent evidence in
Court, wherein he has totally denied that he knew A-2 at all.
(iii) Equally P.W.15 Udayasuriyan has sent a telegram to NCB Office
marked as Ex.P88A in which he has stated that A-2 was tampering with the
evidence. He has sent identical telegram to the Court marked as Ex.C2. He
has well admitted in his chief e nation of having sent Ex.C2, but strangely
denied Ex.P88A. At the time of cross examination, he has denied Ex.C2 also.
It is pertinent to note that it was he who drove the Car with A-2 and P.W.33
to various Courts for procuring witnesses and getting their statements
recorded under Sec.164 of Cr.P.C. After coming to know that he was being
searched by the officials, in order to safeguard himself, he has sent both the
above telegrams. The dates on which P.W.15 drove the Car and took the
witnesses to various Courts were corroborated by the fact that on those dates
the statements under Sec.164 of Cr.P.C. have been recorded by the respective
Magistrates. P.W.15 in the course of his statement marked as Ex.P90 has
categorically stated all the facts. He has also stated in his statement that
A-2 was informed by the Advocate that he has made arrangements to send the
statements under Sec.164 of Cr.P.C. recorded by the Magistrates to the
Special Court belatedly, and the Magistrate at Musiri would get transferred,
and therefore, the other witnesses must be brought before that. The learned
Judicial Magistrate, Musiri examined as P.W.47 has categorically deposed that
on 13.5.98 he recorded the statements of Karuppiah, Mani and Sekar, and those

statements were sent to the Special Court only on 29.5.98. It is pertinent to

point out that the said Magistrate has worked at Musiri till 31.5.98 and
thereafter, he was transferred. All would go to show that the statement given
by P.W.15 was true.
(iv) The contention of the appellants' side that a case has been
engineered by one J.M.K.Sekar against A-2 has been nursing certain grievances
has got to be necessarily rejected. The said J.M.K.Sekar was an Officer of
the Customs Department, under whom A-2 has worked sometime back, and there
were some litigation between them. But, it is pertinent to point out that
P.W.50 and his superior officer T.Rajendran have come on deputation from the
State Police. That apart, number of prosecution witnesses namely P.Ws.1, 30,
31, 37, 45, 51 and 52 are all Officers hailing from the same Department of
both the accused. Number of witnesses examined were actually working in the
same Department of both the accused and have supported the prosecution case.
The appellants are unable to show any reason ro circumstance why these
witnesses joined hands with P.W.50 in order to foist a cast against a member
of their own parental Department, and thus, the mere allegation of mala fide
by suggesting questions to witnesses was not a proof of the same. The accused
have not discharged the burden by proving the existence of mala fide by
adducing convincing and acceptable legal evidence. It would be relevant to
state that A-2 in her statement recorded in jail marked as Ex.P149 has nowhere
stated that the case was foisted at the instance of J.M.K.Sekar. The
allegation by the accused that the case has been foisted at the instance of
J.M.K.Sekar and Amalraj cannot be true because the informer in the case namely
P.W.12 has himself filed a writ of Quo-Warranto against J.M.K.Sekar and
Amalraj, and the said writ petition was dismissed by this Court.
(v) The appellants have examined four witnesses. D.W.4 was examined
in order to support the alleged seizure by A-1. But, it has not inspired the
confidence of the Court. It has been established that Sekar was a mahazar
witness to A-1's earlier seizures. But, it is strange that A-1 has not even
recognised Sekar on 8.5.98, and Sekar has never told D.W.4 that he knew A-1.
There was no necessity to D.W.4 to join hands with Karuppiah for giving
statement under Sec.164 of Cr.P. C. D.W.4 has stated that A-1 told him that
his Office was nearby and asked D.W.4 and Sekar to get into the Jeep. But,
according to A-1, they were taken to Thiruchenduran Mansion. It is pertinent
to point out that D.W.4, Sekar and Karuppiah have obtai ned loans for giving
Sec.164 Cr.P.C. statements at different places in the State. They could have
easily given their version of the case by writing registered letters to NCB.
Thus, all these circumstances, put together, would clearly show that D.W.4 was
very close to the accused and Madhavan of Thiruchenduran Mansion. The
prosecution has proved the charge under Sec.27A of the NDPS Act against A-2
for having financed for transporting the said contraband from Madurai to
Nagercoil, by adducing evidence through P.W.13 and Ex.P79. Therefore, the
prosecution has proved its case beyond reasonable doubt, and the appeal filed
by the appellants/A-1 and A-2 has got to be dismissed, and the appeal filed by

the State has to be allowed and A-2 be convicted under Sec.193 of I.P.C.
10. In support of his contention, the learned Special Public
Prosecutor relied on the following decisions:
1) 1992 L.W. (Crl.) 625; 2) 1993 (3) SCC 609; 3) (1998) 2 SCC 192; 4
) (1994) 4 CRIMES 12 and 5) 2002 (4) CRIMES 160 (SC).
11. This Court has made a complete and careful analysis of all the
materials available and paid its full attention on the elaborate deliberations
put forth by both sides.
12. The facts which are not in controversy can be extracted as
follows:
The appellants in C.A.868 of 2000 arrayed as A-1 and A-2 are husband
and wife respectively. The permanent residential address of A-1 and A-2 was
No.41-D Alloor Road, Chunkankadai, Kanyakumari District. They were working as
Superintendents in the Central Excise and Customs Department and were gazetted
officers. While working at different places, they have registered and
investigated several cases under the N.D.P.S. Act. During the relevant point
of time, A-1, who was working as the Superintendent of Customs, Madurai, was
residing at Room No.116, Thiruchenduran Mansion, Vasantha Nagar, Madurai,
while A-2 was working as Superintendent at Tanjore. A-1 was under the orders
of transfer on 8.5.1998, and P.W.2 S.Periyasamy was his successor. P.W.3
A.Srinivasan and P.W.5 R.Sekar were the subordinates, while P.W.4 R. Sri Ram
was the immediate official superior of A-1 that day. On the date of
occurrence namely 8.5.1998 at about 12.00, noon P.W.1 G. Shanmugam and P.W.50
S.S.Krishnamoorthy went to Room No.116, Thiruchenduran Mansion and recovered 2
kilograms of heroin from the possession of A-1 under Ex.P1 mahazar, and a copy
of the seizure mahazar was served on A-1. A-1 has given a statement under
Sec.67 of the N.D.P.S. Act, marked as Ex.P183, which was written and signed
by him, and he has received a copy of the same also. A-2 was continuously
absent from 8.5.1998 onwards. After arrest, A-2 has given a statement under
Sec.67 of the N.D.P.S. Act marked as Ex.P149, which was written and signed by
her, and she received a copy of the same. The prosecution witnesses who have
given statements under Sec.67 of the N.D.P.S. Act during investigation have
well admitted that the statements were written and signed by them.
13. At the outset, it has to be necessarily stated that on 8.5.1998
at about 12.00 noon, around 2 kilograms of heroin, the contraband involved in
this case was in the possession of A-1 at Room No.116, Thiruchenduran Mansion,
Vasantha Nagar, Madurai, which was in the exclusive occupation of A-1; that
the Intelligence Officers of the complainant Department searched the said
room; and that at that time A-1 produced the said 2 kilograms of heroin, which
was seized under Ex.P1 mahazar, a copy of which was served on A-1. The
prosecution has come forward with a specific case that A-1 at that time and
place was in illegal possession of the said contraband namely 2 kilograms of
heroin, and thus, punishable under the provisions of the N.D.P.S. Act, while
the first appellant/A-1 took a plea that the said narcotic drug was recovered

by him pursuant to an information by way of a seizure at Pazhanganatham bus

stop, 150 feet away from his lodge, a few minutes earlier to the seizure by
the NCB officials in his room. Thus, there are two theories of seizure, one
put forth by the prosecution and the other by the defence.
14. Admittedly, the seizure of the contraband in question was made by
the officials in Room No.116, Thiruchenduran Mansion under Ex.P1 mahazar, and
the said room was in the exclusive occupation of the first accused at the time
when the seizure was made. At this juncture, it would be more appropriate to
reproduce Sec.35 of the N.D.P.S. Act which speaks of the presumption of
culpable mental state:
"35. Presumption of culpable mental state:- (1) In any prosecution for an
offence under this Act which requires a culpable mental state of the accused,
the Court shall presume the existence of such mental state but it shall be a
defence for the accused to prove the fact that he had no such mental state
with respect to the act charged as an offence in that prosecution.
Explanation:- In this section "culpable mental state" includes intention,
motive, knowledge of a fact and belief in, or reason to believe, a fact.
(2) For the purpose of this section, a fact is said to be proved only when the
Court believes it to exist beyond a reasonable doubt and not merely when its
existence is established by a preponderance of probability."
From the very reading of the Section, it would be clear that in any
prosecution for an offence under the Act, if it requires a culpable mental
status of the accused, the Court should presume the existence of such mental
state, but it is for the accused to prove the fact that he had no such mental
state with respect to the act accused of an offence in that prosecution.
According to the said provision, the culpable mental state would include the
intention, motive, knowledge of a fact and belief in, or reason to believe, a
fact. In the instant case, the prosecution by adducing evidence through
P.Ws.1 and 50 and through the admissions made by A-1 in his statement recorded
under Sec.6 7 of the NDPS Act and Sec.313 Cr.P.C. questioning before the
trial Court has proved that A-1 was in possession of the contraband in
question.
15. No doubt the prosecution is obliged to prove it by cogent,
reliable and acceptable evidence that the person alleged to have knowledge of
the said fact was having that knowledge and that should be proved beyond
reasonable doubt. It would mean that any other proposition indicative of the
non existence of knowledge has to be ruled out. This would require letting in
evidence to enable the Court to come to the conclusion on the question whether
it existed. If this test is applied, the Court is very much satisfied that
the prosecution has proved the existence of the same beyond reasonable doubt
by adducing positive evidence discussed infra.
16. In order to prove its case, the prosecution has examined 52
witnesses out of whom 12 witnesses have turned hostile. It is true that both
the witnesses to the seizure namely P.Ws.6 and 7 have turned hostile. They
have gone to the extent of stating that their signatures were obtained in

Ex.P1 mahazar only on 9.5.1998 at the Office of the Deputy Commissioner of

Police, Madurai. It is pertinent to point out that they have given their
statements originally, and the same was also recorded. Much comment was made
by the appellants' side that the names of those witnesses have been
subsequently added at the top of Ex.P1 mahazar by using a different ink. This
contention cannot be accepted for the simple reason that A-1 has made an
endorsement acknowledging the receipt of a copy of the mahazar. Had the names
of the witnesses been subsequently introduced according to the convenience of
the Department, a person like A-1, who happened to be the Superintendent of
Customs that day, would not have received a copy of the same. He has not
complained at any point of time about such inclusion of the names of those two
witnesses subsequently. From the evidence of P.W.50 Assistant Director of
NCB, it would be clear that on a telephonic message received by him on 7.5.98
at about 2.10 P.M. from his informer P.W.12 Dominic, he accompanied by P.W.1
Intelligence Officer Shanmugam proceeded in a Car to Madurai; that after
reaching Madurai, they could not meet the informer near Pazhanganatham bus
stand, and then they proceeded to Radhapuram; that when they reached
Valliyoor, they tried to contact P.W.12 through phone, which was attended by
P.W12 's father; that he replied that his son P.W.12 was waiting in the petrol
bunk situated near Madurai Palanganatham bus stand and they could meet him
there; that P.W.50 accompanied by P.W.1 returned to Madurai, met P.W.12 at
about 7.00 A.M. and reduced the information into writing seating inside his
Car; that P.W.50 took a copy of the said information, and the original was
kept in a sealed cover; that the copy of the information taken by P.W.50 was
marked as Ex.P73; that at about 7.45 P.M., P.W.50 went to the nearby STD booth
and contacted his Head Office through phone and informed to P.W.52 about the
information he received and directed P.W.52 to communicate the same to the
Director of N.C.B.; and that a printout in respect of the telephonic
communication issued by the STD Booth is marked as Ex.P209. The contention of
the appellants' side that Ex.P209 was only a created one for the purpose of
the case cannot be accepted for the reason that even this information to
P.W.52 by telephonic communication was referred to in the earliest report
given by him. It is the further evidence of P.W.50 that at 8.15 P.M. when
P.Ws.1 and 50 proceeded to Thiruchenduran Mansion, they found the room locked;
that P.W.50 directed P.W.1 to fetch one independent witness for the purpose of
seizure, but, P.W.50 was waiting there keeping surveillance over the said
place; that at about 11.30, he found the first accused came in his official
Jeep, got down at Vasantha Nagar bus stop and proceeded to the Thiruchenduran
Mansion with the plastic bag marked as M.O.11 being rolled and kept in his
hand; that at about 11.00 A.M. P.W.1 and P.W.7 Ayyannan, a village assistant,
came there; that P.W.7 agreed to be a witness for the investigation; that when
P.W.6 Krishna Rao, the Manager of the said Mansion was contacted, he was also
prepared to be a witness; that then P.W.50 accompanied by P.W.1 and the two
independent witnesses P.Ws.6 and 7 proceeded to the upstairs where the room of
A-1 was situated; that they found the room locked inside; that they tapped the

door, and when A-1 opened the door, P.W.50 introduced himself to the first
accused, and after following the procedural formalities as contemplated under
Sec.50 of the N.D.P.S. Act, the search was made; and that when P. W.50 asked
A-1 whether there was any contraband inside the room, A-1 took out M.O.11 rose
coloured polythene bag containing 2 packets inside M.O.10 cloth bag which was
kept on the cot and handed over the same to P.W.50 and told that it contained
the narcotic drug heroin, and would further add that it was seized by him a
few minutes before at Vasantha Nagar bus stop. At this juncture, it has to be
necessarily mentioned that A-1 at no point of time has complained that the
procedural formalities as contemplated under the provisions of the N.D.P.S.
Act were not followed by the officials. In the presence of those two
witnesses, the contraband was seized under Ex.P1 mahazar along with the
samples marked as M.Os.2, 3, 5 and 6.
17. It is true that P.Ws.6 and 7 have turned hostile. The factum of
preparation of Ex.P1 mahazar at Room No.116, Thiruchenduran Mansion which was
in the exclusive occupation of A-1 at the time of seizure by the officials of
the Department is not disputed by A-1. A perusal of Ex.P1 would clearly
indicate that A-1 was served with a copy of the same. It is not the case of
A-1 at any point of time that copy of Ex.P1 was not served at that time. As
pointed out above, according to the prosecution, the names of the two
witnesses though written in a different ink, were written at that time, in the
presence of those two witnesses in Ex.P1. It was contended by the appellants'
side with vigour and vehemence that Ex.P1 mahazar which is the basis for the
recovery of the contraband, loses all its value and significance in a case
like this, when both the mahazar witnesses have turned hostile. The Court is
unable to agree with the said contention. Firstly, a copy of Ex.P1 mahazar
was served on A-1. The said mahazar contained the names of the two witnesses.
If the witnesses were either not present or their names were not included in
Ex.P1 mahazar, A-1 would not have received the copy of an incomplete document.
The service of Ex.P1 at that time would be pointing to the presence of those
two witnesses as spoken to by P.Ws.1 and 50, and thus, Ex.P1 mahazar was a
complete document including the names of those two witnesses. It is pertinent
to point out that the statement of those witnesses have been recorded. For
the reasons best known to them, those witnesses have turned hostile, and they
have gone to the extent of stating that they have put the signature on 9.5.98
in the Office of the Deputy Commissioner. In view of the reasons stated
above, it has to be held that the seizure was properly done in the presence of
those two witnesses under Ex.P1 mahazar. After the seizure was made, A-1 was
taken to the Office of the Deputy Commissioner, Madurai, where a statement
under Sec.67 of the NDPS Act was recorded by the NCB officials, and following
his arrest, he was produced before the concerned Judicial Magistrate's Court
along with the contraband, where he was remanded to judicial custody. 18.
It is the contention of the ap pellants' side that the case of the prosecution
that P.W.50 on receipt of an information at Madras proceeded to Madurai with
P.W.1 and then proceeded to Valliyoor and came back to Madurai, met P.W.12

Dominic, got information from him, pursuant to which the search was made are
all stories invented by the prosecution in order to foist a case against the
accused. The Court is unable to agree with the said contention. Had it been
the desire of the Department to foist a case against A-1, it was not necessary
for the officials like P.W.50, Assistant Director of the Department to proceed
with his Intelligence Officers immediately by a Car and proceed to Valliyoor
and came back to Madurai. It is true that P.W.1 2 Dominic has turned hostile.
But, it remains to be stated that P.W.12 has well admitted in his evidence
that he met P.W.50 on 8.5.98 morning and gave an information. Though P.W.12
has denied the contents of the information as put forth by P.W.50, from the
evidence of P.W.5 0 it would be clear that it was pursuant to the information
they have acted and seized the contraband from A-1. Hence, the Court is of
the considered view that though P.Ws.6 and 7 mahazar witnesses and the
informer P.W.12 have turned hostile, no way it has affected the truth of the
prosecution case, since the prosecution has proved the illegal possession
through the evidence of P.Ws.1 and 50 and the documentary evidence relied on
by them as referred to above. The appellants are unable to show any reason or
circumstance to disbelieve or reject the testimony of P.Ws.1 and 50. Both the
accused in the case are in the rank of Superintendents of Customs and Excise.
It is not the case of the appellants that any one of the witnesses examined by
the prosecution was on inimical terms or had got animosity against them.
Apart from the positive evidence as narrated above, it is pertinent to point
out that the said contraband at the time of seizure was found in Room No.116,
Thiruchenduran Mansion, which was in his exclusive occupation, and hence, the
knowledge of A-1 as to the possession of the said contraband at that time
cannot be disputed by him. Hence, there cannot be any legal impediment in
drawing a presumption as to the existence of the culpable mental state of A-1
at that point of time in view of the positive evidence adduced by the
prosecution as discussed above.
19. It is true that the defence for A-1 was available to prove that
he had no such mental state with respect to the said possession. In such a
situation, what are all expected to be proved by the accused that he had no
such mental state was only the existence of preponderance of probabilities and
not proving the same beyond reasonable doubt. There is lot of difference
between preponderance of probabilities and beyond reasonable doubt. The first
appellant/A-1 in his attempt to disprove the presumption has come with a plea
stating that on 8.5.9 8 at 10.00 A.M., when he was in his Office, he received
an information that a person carrying 2 kilograms of heroin was standing near
Vasantha Nagar Bus Stand; that with an idea to work out the same, he had gone
to the place in the Office Jeep driven by P.W.8 Sepoy-cumDriver around 11.30
A.M.; that on seeing A-1, the person carrying the plastic bag dropped it and
fled; that though A-1 chased him, he was unable to catch him; that A-1
returned to the place, where the bag was dropped; that he called two persons
namely D.W.4 Mani and Sekar to be witnesses; that along with those witnesses,
he came to his Room No.116, Thiruchenduran Mansion, which is situate very

nearby, but at that time P.Ws.1 and 50 entered into his room, and the seizure
in question was made by P.Ws.1 and 50. Many are the circumstances which would
indicate that the plea of A-1 namely the drop theory is highly improbable,
unbelievable and cannot be accepted. Admittedly, at about 10.00 A.M. on
8.5.98, A-1 was on duty at his Office. According to A-1, only on receipt of
an information that a person carrying 2 kilograms of heroin was standing near
Vasantha Nagar bus stand, he wanted to proceed to that place. There is no
satisfactory explanation on the side of A-1 why he did not either reduce the
said information into writing or pass on the information to his superior
Officer or inform P.W.3 who was his immediate subordinate well available in
the Office that time. The explanation tendered by A-1 that it was a vague
information, and hence, it need not be recorded has got to be discountenanced
in view of his earlier recording of the informations under Ex.P19 report. It
remains to be stated that in the earlier occasions though he received the
information at his residence namely Room No.116, Thiruchenduran Mansion, he
has gone over to his Office and recorded the information, and then he has
proceeded to the particular spot. There is also no explanation tendered by
A-1 why he did not employ the regular Driver of the Department. But, he has
employed P.W.8 Sepoy-cum-Driver, who has subsequently turned hostile though
gave a statement under Sec.67 of the NDPS Act. Though A-1 has started from
his Office to work out the said information, he went to Khadi Bhavan and has
purchased M.O.10 bag. If really A-1 had any information as stated by him, he
would have rushed to the spot for apprehending the offender. This conduct of
A-1 who was the Superintendent of Customs that time, was not only opposed to
the ordinary course of conduct what is expected of a reasonable person, but
also cast a doubt on his conduct. Needless to say that the official who
received the information, if not reaches the spot immediately, it would be
nothing but enabling the offender escape from that place. It is pertinent to
point out at this juncture that the seizure in question was made by P.Ws.1 and
50 from A-1. The contraband was actually kept in M.O.10 bag, which would be
indicative of the fact that A-1 has gone to the shop for the purchase of
M.O.10 bag only for the purpose of keeping the contraband in question. It is
highly unbelievable that a person with 2 kilograms of heroin was standing at
Vasantha Nagar bus stop, which was highly crowded that time and in particular
when police patrol was made on account of a function in a nearby marriage
hall. Admittedly, A-1 was to hand over the charge to P.W.2 Periyasamy, his
successor in Office on 8.5.98. But, A-1 while he left the Office at 10'O
Clock, has informed to P.W.3 to inform P.W.2 that he would be back by 12.30
P.M. and hand over the charge. If really A-1 left on the alleged information
received by him, he could not have been sure of returning to the Office with a
specified time. This would also cast a doubt on the alleged information
received by A-1.
20. According to A-1, he took two persons namely D.W.4 Mani and Sekar
from the Vasantha Nagar bus stop to his room for the preparation of mahazar
for the seizure alleged to have been made by him. It is not in dispute that

Ex.P1 mahazar was prepared at the time of seizure of the contraband in

question by P.Ws.1 and 50 at Room No.116, Thiruchenduran Mansion, and a copy
of the same was also served on A-1. Nowhere has A-1 stated the names of those
two persons. These two persons both D.W.4 Mani and Sekar were introduced by
A-1 at the time when he made his statement under Sec.67 of the NDPS Act, which
was marked as Ex.P183. It is pertinent to point out tha t when he has
referred to both the persons in the statement, he has stated as if those two
persons were totally unknown to him, and they were requested to be witnesses
suddenly. Through the evidence of P.Ws.5 and 39 and the mahazars under Exs.P1
and P45, it was proved by the prosecution that the said Sekar was well known
to A-1 even prior to 8.5.98, and hence, it leaves no doubt that A-1 has
introduced the names of those two persons at a later point of time. The
non-mentioning of those two names at the time of the mahazar would clearly
falsify that A-1 took both of them from Vasantha Nagar bus stop to
Thiruchenduran Mansion as alleged by him. The contention of the appellants'
side that A-1 actually made mention of those two names even at the time of
recording of the mahazar under Ex.P1, but the officials of the Department have
deliberately and wantonly omitted to include the same has got to be rejected
in view of the fact that had it been the intention of the officials to act
against him, the officials of the Department would not have included his
defence plea of drop theory in the mahazar. This is another strong
circumstance which would go against the defence plea. A-1 has not taken
anybody to assist him in the operation, nor has he taken with him the
necessary tools for testing the narcotic drug. It is highly improbable that
at about 11.30 A.M. in a crowded public place like Vasantha Nagar bus stand,
and that too in the presence of police patrol very nearby, the anonymous
carrier on seeing A-1 ran from the place; and that though nobody else except
A-1 chased him, the said person could not be caught. It is the case of the
prosecution that the room of A-1 was locked inside; that P.Ws.1 and 50 knocked
the doors; that when the same was opened by A-1, the contraband in question
namely 2 kilograms of heroin was in the possession of A-1, and the same was
seized. Contrary to the above, it was contended by A-1 that he seized the
same at the Vasantha Nagar bus stop, and for the preparation of mahazar, he
took the same to his room. Had it been true that A-1 had made such a seizure
at Vasantha Nagar bus stop as contended by him, he should have proceeded
directly to his Office for the preparation of the mahazar, if he felt that it
could not be done at the bus stop. Even he would have prepared the mahazar at
the Office Room of the Thiruchenduran Mansion situated in the ground floor.
There is no explanation as to which necessitated him to took the contraband
directly to his room. At this juncture, it remains to be stated that P.W.2
Periyasamy, an Officer who was to take charge from A-1 would have waited for
his arrival. All the above would be clearly indicative of the fact that this
was only a false plea put forth by the first appellants/accused to escape from
the grip and rigour of law. Therefore, without any hesitation it can be
stated that the first appellant has miserably failed to rebut the said

presumption as contemplated under Sec.3 5 of the N.D.P.S. Act.

21. According to the appellants, the instant case came to be foisted
at the instance of one J.M.K.Sekar and Amalraj. On scrutiny of the available
materials, it would be clear that the said plea of mala fide attributed to the
prosecution had no basis at all. It is not disputed that A-2 the wife of A-1
has worked under J.M.K.Sekar in the past, and there were some litigations
between them. It has to be necessarily stated that the instant case was
registered and prosecuted by Narcotic Control Bureau (NCB) which had nothing
to do with the Customs Department. P.W.50 and his superior officer have come
to N.C.B. on deputation. That apart, about 20 witnesses out of 52 examined
by the prosecution belonged to the Department of both the accused. Some of
the witnesses are from the Department of Tele Communications also. The
appellants are unable to show any reason why all those witnesses from
different Departments and also from the Department of both the accused have
come forward to adduce evidence against both of them. Apart from the above,
when A-2 was in jail, her statement was recorded and marked as Ex.P149.
Nowhere in the statement A-2 has mentioned that the instant case was foisted
at the instance of J.M.K.Sekar and Amalraj. In the absence of any proof, it
would be highly difficult to accept the defence plea of mala fide.
22. The appellants/A-1 and A-2 were charged under Sec.29 of the
N.D.P.S. Act for having entered into a criminal conspiracy. On close
scrutiny of the materials available, the Court is of the considered view that
there are sufficient proved facts and circumstances, from which the existence
of conspiracy could be well inferred. It would be more appropriate and
advantageous to reproduce the following judicial pronouncements which speak
about the law relating to conspiracy.
(i) It has been held by the Apex Court in a decision reported in 199
3(3) SCC 609 (AJAY AGGARWAL V. UNION OF INDIA AND OTHERS) as follows:
"24. Thus, an agreement between two or more persons to do an illegal act or
legal acts by illegal means is criminal conspiracy. 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 in furtherance of
the agreement. The offence is complete as soon as there is meeting of minds
and unity of purpose between the conspirators to do that illegal act or legal
act by illegal means. Conspiracy itself is a substantive offence and is
distinct from the offence to commit which the conspiracy is entered into. It
is undoubted that the general conspiracy is distinct from number of separate
offences committed while executing the offence of conspiracy. Each act
constitutes separate offence punishable, independent of conspiracy....
25. A conspiracy thus, is a continuing offence and continues to subsist and
committed wherever one of the conspirators does an act or series of acts. So
long as its performance continues, it is a continuing offence till it is
executed or rescinded or frustrated by choice or necessity. A crime is
complete as soon as the agreement is made, but it is not a thing of the
moment. It does not end with the making of the agreement. It will continue

so long as there are two or more parties to it intending to carry into effect
the design. Its continuance is a threat to the society against which it was
aimed at and would be dealt with as soon as that jurisdiction can properly
claim the power to do so."
(ii) This Court has held in a decision reported in 1992 L.W. (
Criminal) 625 (STATE BY DEPUTY SUPERINTENDENT OF POLICE, CRIME BRANCH, C.I.D.
HEADQUARTERS UNIT, MADRAS-4 V. S.THIRUNAVUKKARASU AND ANOTHER) thus:
"Conspiracy as a whole is brought about in secrecy and the proof of the same,
by adduction of evidence direct, is really an impossible feat in most of the
cases, though in the rarest of rare occasion, the possibility of obtaining
such evidence is there. As such the conspiracy may be proved in most of the
cases, by process of inference or induction from relevant proved facts and
circumstances."
23. In the instant case it has to be necessarily stated that the
following circumstances, no doubt, indicate the existence of conspiracy:
The fact that P.W.12 Dominic, an informer to P.W.50 was originally an
informer to A-2 also in a Customs case in Crime No.3/96 is not disputed by the
appellants. P.W.12 has well admitted that he gave an information to P.W.50 to
go over to Madurai on 7.5.98 and met P.W.50 on the morning of 8.5.98. Even in
the information of P.W.12 which was reduced into writing by P.W.50 and marked
as Ex.P73, the involvement of A-2 was referred to. P.W.12 has lodged a
complaint before Valliyoor Police Station on 14.5.98, on the strength of which
a case was registered as seen in Ex.P74 F.I.R. A perusal of Ex.P74 would
clearly reveal that P.W.12 has alleged that A-2 was making an attempt at his
life after coming to know that he was the informer to the Department. Nowhere
has he stated in Ex.P74 that he was not the informer in respect of the
incident in question. A-2 was ranked as A-1 in that case registered by
Valliyoor police at the instance of P.W.12. P.W.12 has also admitted that he
filed a petition before this Court under Sec.48 2 of Cr.P.C. as found under
Ex.P77 seeking the directions of this Court to the Police to arrest A-2
alleging that the NCB Officers were lethargic in apprehending A-2, and if she
was allowed to move about, his life would be in peril. P.W.12 in his evidence
has well admitted that the said application was filed at his instance, and he
has not stated that anybody else was responsible for the same. Had he not
been the informer as urged by the prosecution, there was no need or necessity
for him either to lodge a complaint before Valliyoor Police Station s found
under Ex.P74 or to file a petition under Ex.P77 before this Court seeking a
direction to arrest A-2. It has to be noted that the complaint was lodged
under Ex.P74 by P.W.12 within a week from the date of arrest of A-1. The
prosecution has examined P.W.48 Sivasankaran, who was a Sub Divisional
Engineer, Thucklay Telephone Exchange. Through his evidence, it has been
proved that the two telephones were functioning from the residence of the
accused at No.41-D, Aloor Road, Chungankadai; and that the telephone calls
were made from the residential telephone of the accused to the residential
telephone of P.W.12 as shown out in Exs.P207 and P208 printouts. In his

statement recorded under Sec.67 of the NDPS Act, marked as Ex.P76, P.W.12 has
disclosed that on 7.5.1998, A-2 has telephoned him twice and sought his help
for transporting 2 kilograms of heroin from the possession of her husband
namely A-1, but he declined to accede to the request; and that A-2 requested
him to contact P.W.13 Sam Immanuel in carrying out the same. At this
juncture, it has to be necessarily pointed out that P.W.12 though he was
previously known and informant to A-2, has not only disobliged A-2, but has
also passed on the information immediately on 7.5.1998 to the NCB Department
at Madras. The prosecution has filed Ex.P72 letter written by P.W.12 Dominic
to all the Enforcement Agencies in India seeking for protection. At the time
of evidence, he came forward to state that the letter was written as asked by
the Officers of NCB, which could not be believed in view of the available
circumstances. P.W.13 Sam Immanuel though turned hostile, has admitted that
he gave a statement to the Department, but it was as dictated by P.W.51. But,
the prosecution has adduced Exs.P82, P82A and P83 A produced by P.W.13 at the
time of enquiry. Ex.P82A was a manuscript of a letter written by A-2 to be
sent to the higher officials complaining against one Amalraj. A comparison of
Ex.P82A manuscript of the letter and the statement of A-2 under Ex.P149 would
reveal that both have been written by the same person. Admittedly, Ex.P149
statement was written and signed by A-2. Ex.P82A manuscript cannot be
prepared or manufactured by the officials of the NCB Wing. The mere denial of
handing over of those documents by P.W.13 cannot in any way take away the
tenor of the documents. At this juncture, it is pertinent to point out that
in her statement given under Sec.313 of Cr.P.C., she has stated that the case
was foisted at the instance of J.M.K.Sekar and Amalraj. The contention of the
defence that P.W.13 has acted in collusion with P.W.12 in falsely implicating
A-2 has to be rejected in view of the fact that P.W.12 informer has also
turned hostile. Thus, from the above documentary evidence, it would be very
clear that A-1 was in illegal possession of the contraband in question, and
A-2 had taken steps for transporting the contraband safely from the possession
of A-1, which, under the circumstances, would lead to the inference that it
should have followed the conspiracy hatched up by A-1 and A-2 in that regard.
24. A controversy as to a question of law whether the statements
recorded under Sec.67 of the N.D.P.S. Act has got value as substantive piece
of evidence arose in the instant case. It was vehemently contended by the
learned Special Public Prosecutor Mr.P.N.Prakash that though the witnesses
namely P.Ws.6, 7, 8, 12, 13, 15 and 33 have turned hostile, the Court has to
invoke Sec.53A(1)(b) of the N.D.P.S. Act to treat the statements given by
them as a substantive piece of evidence in the light of the fact that they
have not given any satisfactory explanation for turning hostile to the case of
the prosecution. Contrary to the above, it was argued by the learned Senior
Counsel Mr.B. Kumar on behalf of the appellants that the evidence of the
witnesses recorded before the Court was only the substantive evidence, and the
statement recorded under Sec.67 of the N.D.P.S. Act subsequent to retraction
of the deponent was of no value, and it cannot be used either for

corroboration or contradiction. The Court is of the opinion that the

contention of the prosecution cannot be countenanced for more reasons than
one. The statements recorded by the officials of the prosecuting agency under
Sec.67 of the NDPS Act were signed by the makers themselves, while the
statements recorded under Sec.161(3) of Cr.P.C. is not signed by the maker,
as they are recorded by the police officials at the time of investigation.
The officials of the N.C.B. Department are recording the statements under
Sec.67 of the NDPS Act in the absence of the accused concerned. There was no
opportunity for the accused, which was a fundamental right available to the
accused in criminal jurisprudence. The trial Court has given treatment to the
statements recorded by the officials as substantive piece of evidence, though
the witnesses have turned hostile. For doing so, it has adduced two reasons.
Firstly, the officials of the NCB Department were entitled to record the
statements from the witnesses under Sec.67 of the Act, and the officers being
not police officers, there is no bar in admitting the statement. Secondly,
the statement of objects and reasons for introducing the amendment in 1989
introducing Sec.53A in the Act. This Court is of the considered view that the
reasons adduced by the trial Court are neither sound nor acceptable. It has
been laid down by the Apex Court in a case reported in AIR 1952 SC 369 (
ASWINI KUMAR GHOSE AND ANOTHER V. ARABINDA BOSE AND ANOTHER) as follows:
"The Statement of Objects and Reasons, seeks only to explain what reasons
induced the mover to introduce the bill in the House and what objects he
sought to achieve. But those objects and reasons may or may not correspond to
the objective which the majority of members had in view when they passed it
into law. The Bill may have undergone radical changes during its passage
through the House or Houses, and there is no guarantee that the reasons which
led to its introduction and the objects thereby sought to be achieved have
remained the same throughout till the Bill emerges from the House as an Act of
the Legislature, for they do not form part of the Bill and are not voted upon
by the members. The Statement of Objects and Reasons appended to the Bill
should be ruled out as an aid to the construction of a statute."
25. Sec.53 of the N.D.P.S. Act does not contain any non-absenti
clause that the said provision shall prevail over the Evidence Act or any
other law contrary to it. No doubt Evidence Act is a complete Code by itself.
What is not evidence under the Evidence Act could never be utilised by any
prosecution in a Court of law to arrive at any decision. Thus, the provisions
of law under the Evidence Act in effect prohibit the employment of any kind of
evidence not specifically authorised by that Act itself, and hence, the
previous statement of a person could be used only for the purposes as
mentioned under Sec.145 of the Evidence Act. No words have been employed by
the Legislature under Sec.53A of the NDPS Act, which would alter the
fundamental nature of evidence itself in a trial before a Criminal Court. In
the absence of those words, the interpretation of the said provision would be
against the legislative intent and inconceivable also. According to Sec.53 of
the NDPS Act, previous statement could be admitted only if the witness is dead

or cannot be found out or if alive and called as a witness, the Court in the
circumstances of the case thinks just to admit. As to the question what could
be the circumstances under which the Court could admit, it could be answered
that the circumstances must be such to make the previous statement admissible.
The term " circumstances" employed in Sec.53 of the N.D.P.S. Act has nothing
to do with the validity of the statement or how it was given. If these
statements are admitted as substantive piece of evidence, it would be
violative of the provisions of the Evidence Act and would take away the
fundamental right available to the accused to test the veracity of the
deposition by cross examination, and hence, the contention of the prosecution
side that the statements recorded by the officials of the NCB Department have
to be treated as substantive piece of evidence cannot get the approval of law.
26. The contention put forth by the appellants' side that the
substance seized and produced before the trial Court is not a narcotic
substance has got to be rejected in view of the evidence of P.W.11 Sankaran,
who has categorically stated that he conducted the marquis test and found all
the samples contained Di-Acetyle Morphine called heroin, and he has sent an
interim report dated 11.6.98 marked as Ex.P70. He has also further added that
he held betax test and confirmed that the said samples contained Di-Acetyl
Morphine, and after conducting Gax Layer Chromotography, he found out the
percentage of Di-Acetyl Morphine and gave a final report under Ex.P71. Thus,
both the reports under Exs.P70 and P71 disclosed that the substance seized
from A-1 was a narcotic substance namely heroin. Heroin comes under the opium
derivative. Sec.2(xvi)(d) of the Act would show that the percentage of
Di-Acetyl Morphine is not essential to ascertain whether a particular drug is
a heroin or not. Therefore, the absence of percentage of Di-Acetyl Morphine
as per Exs.P70 and P71 reports would not affect the case of the prosecution.
From the above, it would be abundantly clear that the substance what was
seized from A-1 by P.W.50 in the instant case was a narcotic substance namely
heroin.
27. A specific charge under Sec.193 of the Indian Penal Code was
framed against the second appellant/A-2 on the statement by the prosecution
that she fabricated false evidence for the purpose of being used in the
judicial proceedings if and when initiated against them; and that in order to
use the evidence of P.W.6 Krishna Rao, P.W.7 Ayyannan, P.W.8 Vivekanandan,
A.Mani, R.Karuppiah, P.Sekar and P.W.33 Prabhakar in favour of the accused, if
the trial commenced before the Special Court on a complaint by the NCB, A-2
made these persons to give false statements under Sec.164 of Cr.P.C. before
different Judicial Magistrates. This charge was rejected by the trial Court
on the grounds both legal and factual. The learned Special Public Prosecutor
in his attempt to sustain the said charge against A-2 would submit that only
if the offence was committed during the pendency of a trial, Sec.19
5(1)(b)(ii) of Cr.P.C. will come into operation, for all other offences
committed earlier to the commencement of the trial, Sec.195(1)(b)(ii) of
Cr.P.C. would not act as a bar to file a complaint. Sec.195 of Cr.P.C.

reads as follows:
"195. Prosecution for contempt of lawful authority of public servants for
offences against public justice and for offences relating to documents given
in evidence:-
(1) No Court shall take cognizance-
(a) (i) of any offence punishable under sections 172 to 178 (both inclusive)
of the Indian Penal Code, or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the

complaint in writing of the public servant concerned or of some other public
servant to whom he is administratively subordinate;
(b)(i) of any offence punishable under any of the following sections of the
Indian Penal Code, namely, sections 193 to 196 (both inclusive), 199, 200, 205
to 211 (both inclusive) and 228, when such offence is alleged to have been
committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under section 471,
section 475 or section 476, of the said Code, when such offence is alleged to
have been committed in respect of a document produced or given in evidence in
a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the
abetment of any offence specified in sub-clause (i) or subclause (ii),
except on the complaint in writing of that Court, or of some other Court to
which that Court is subordinate...."
28. No doubt fabricating false evidence by abetting witnesses to
record statements under Sec.164 of Cr.P.C. would fall under Sec.195(1)( b)(i)
of Cr.P.C. It was contended by the learned Special Public Prosecutor that
there are two limbs to Sec.193 of I.P.C. namely (a) Giving false evidence in
a judicial proceeding; and (b) Fabricating false evidence with an intention to
use it at any stage of the judicial proceeding. He would further add that if
a person gives a false evidence in a judicial proceeding, then the Court
before whom he has given such false evidence would file a complaint, and the
proceedings under Sec.195 read with 340 of Cr.P.C. would be initiated; that
under Sec.19 5(1)(b)(i) of the Code, a complaint from a Court is required for
initiating a criminal action under Sec.193 of I.P.C., when such offence is
alleged to have been committed in or in relation to any proceedings in any
Court; and that in the instant case, when Sec.164 Cr.P.C. statements were
recorded from those witnesses, no proceedings were pending before the Special
Court. According to the learned Special Public Prosecutor, in the instant
case, the offence committed by A-2 falls under the second category namely
fabrication of false evidence for the purpose of being used in the judicial
proceedings, and in the instant case, all the statements of P.Ws.6, 7, 8,
Mani, Karuppiah, Sekar and P.W.33 were recorded under Sec.164 of Cr.P.C. even
before the initiation of the proceedings. Sec.195(1)(b)(i) of Cr.P.C.
clearly stipulates "when such offence is alleged to have been committed in or

in relation to any proceedings in any Court". It is pertinent to point out

that the complaint in the instant case was filed before the Special Court only
on 3.8.1998, though the case was registered on 9.5.1998 . Though their
statements were recorded even prior to the filing of the complaint on 3.8.98,
the case was registered on 9.5.98, A-1 was arrested, he was remanded then and
there, the F.I.R. was placed before the concerned Court, and the proceedings
were actually pending. Under Sec.195 of Cr.P.C., the Court shall not take
cognizance of an offence if punishable under Sec.193 of I.P.C., when such
offence is alleged to have been committed in or in relation to any proceedings
in any Court, except on the complaint in writing of that Court or of some
other Court to which that Court is subordinate. In the instant case, it
cannot be stated that when the statements of those witnesses were recorded
under Sec.164 of Cr.P.C., no proceeding was pending against the accused.
Hence, as rightly pointed out by the lower Court, the charge against A-2 under
Sec.193 of I.P.C. suffered on a technical ground of non-compliance of
Sec.195(1)(b)(i) of Cr.P.C.
29. The trial Court has also pointed out that the prosecution has not
bring home the guilt of the second accused under Sec.193 of I.P.C. even
factually also. The prosecution relied on the evidence of P.Ws.13, 15 and 33.
It is pertinent to point out that all these three witnesses have turned
hostile. The lower Court has, on reasons, rejected the statements of P.Ws.15
and 33. The defence has examined one Thillairajan as D.W.1, who has
categorically deposed that he was aged 50 years; and that he did not know
P.W.13 at all. From the evidence of D.W.1 it could be seen that it was he who
came to the NCB Office, posed himself as Thillairajan and gave the statement
marked as Ex.P228. The lower Court has pointed out that the statement of
P.W.13 cannot be given any evidentiary value. It remains to be stated that
this Court has found that the statements recorded by the NCB Officials under
Sec.67 of the N.D.P.S. Act cannot be treated as a substantive piece of
evidence. If so, no proof was available to bring home the guilt of A-2 under
Sec.193 of I.P.C.
30. So far as the charge under Sec.27A of the N.D.P.S. Act against
A-2 for having financed for transportation of the said contraband from Madurai
to her native place is concerned, it is the specific case of the prosecution
that A-2 made a payment of Rs.300/- to P.W.13 Sam Immanuel and requested him
to go to Madurai and bring the luggages of A-1 along with 2 kilograms of
heroin. P.W.13, though gave a statement under Sec.67 of the N.D.P.S. Act as
found under Ex.P79, has turned hostile. As rightly pointed out by the lower
Court, Ex.P79 would indicate that P.W.13 received the amount of Rs.300/- only
for the purpose of going to Madurai and not for the purpose of bringing the
contraband from Madurai to Nagercoil. Therefore, in the absence of any
satisfactory and acceptable evidence, the contention of the State that A-2
financed for transportation of the said contraband cannot be accepted.
31. In the light of the above reasons, it has to be necessarily held
that the Court below was perfectly correct in finding the appellants/A-1 and

A-2 guilty under Sec.29 of the N.D.P.S. Act for having entered into a
criminal conspiracy, A-1 guilty under Sec.8(c) read with 21 of the N.D.P.S.
Act for having possession of heroin and A-2 guilty under Sec.28 of the
N.D.P.S. Act for having attempted to transport the contraband from Madurai to
her native place. In view of the evidence both oral and documentary, the
lower Court was right in acquitting A-2 for the charges under Sec.27A of the
N.D.P.S. Act and Sec.193 of I.P.C. Therefore, this Court does not find any
illegality or infirmity in the conviction passed by the lower Court.
32. Coming to the question of punishment, the lower Court has
sentenced A-1 to undergo Rigorous Imprisonment for 15 years and to pay a fine
of Rs.2.00 lakhs, in default to undergo Simple Imprisonment for 2 years for
the offence under Ss 8(c) read with 21 and to undergo Rigorous Imprisonment
for 15 years and to pay a fine of Rs.2.00 lakhs, in default to undergo Simple
Imprisonment for 2 years for the offence under Sec.29 of the N.D.P.S. Act,
while it has sentenced A-2 to undergo Rigorous Imprisonment for 15 years and
to pay a fine of Rs.2.00 lakhs, in default to undergo Simple Imprisonment for
2 years for the offence under Sec.28 of the N.D.P.S. Act and to undergo
Rigorous Imprisonment for 15 years and to pay a fine of Rs.2.00 lakhs, in
default to undergo Simple Imprisonment for 2 years for the offence under
Sec.29 of the N.D.P.S. Act. Needless to say, the crime committed by the
appellants/A-1 and A-2 is against the society. When the said offences are
committed by the two Officials in the rank of Superintendents, that too
entrusted with the duty to enforce law strictly and book the offenders under
the provisions of the said enactment, it is a matter of shock to note that
they themselves have indulged in such kind of anti-social activities. Making
it as a step towards the eradication of the evils to society by drug
trafficking and considering the gravity of the offence, the Legislature has
imposed severe rigorous punishment on the offenders. Under such
circumstances, when it is noticed by the Court that such offences are
committed by the Officials, who are bound to protect the interest of the
society by enforcing the said law, the Court can, at no stretch of
imagination, either show sympathy or take a lenient view in the matter.
Hence, the lower Court was perfectly correct in awarding the sentence. The
Court is unable to see any reason to interfere in the quantum of sentence
awarded. The Court is of the firm view that there are no merits in both the
appeals, and the judgment of the lower Court has got to be necessarily
sustained.
33. Therefore, both the criminal appeals fail, and they are
dismissed, confirming the judgment of the lower Court.
Index: Yes
Internet: Yes
To:
1) The Special District and Sessions Judge for E.C.Act and
NDPS Act Cases, Madurai.


3) The Superintendent, Special Prison for Women, Vellore.
4) The Superintendent, Central Prison, Vellore.
5) The Special Public Prosecutor for Narcotic Control Bureau
Chennai.
6) The Superintendent, Narcotic Control Bureau, South
Zonal Unit, Chennai.
nsv/

DATED: 29/04/2003
CORAM
THE HONOURABLE MR.JUSTICE V.KANAGARAJ
CRIMINAL APPEAL NO.317 of 2001
Leon Bernard .. Appellant
-Vs-
Central rep. by
The Intelligence Officer,
South Zonal Unit,
Chennai-90. .. Respondent
Criminal Appeal preffed u/s 374 of Cr.P.C. as stated therein.
For Appellant: Mr.R.C.Paul Kanagaraj
For Respondent:Mr.Jeyachandran
for Mr.P.N.Prakash
Special Public Prosecutor.
:JUDGMENT
This Criminal Appeal is directed against the judgment dated 16.2.200 1

rendered in C.C.No.255 of 1998 by the Court of Additional Special Judge for
NDPS Act Cases, Chennai thereby convicting the appellant for an offence
punishable under Sections 8(c) read with 21 of the NDPS Act and sentencing him
to undergo R.I. for ten years and to pay a fine of Rs.One lakh in default to
undergo a further R.I.for a period of six months.
2. The charge against the appellant/accused before the trial Court

was that on 7.10.1998, the officers of Narcotic Control Bureau, Chennai,
intercepted the accused, on a specific information, at Chennai Central Railway
Station and on enquiry the accused handed over the Heroin weighing about 820
grams in two “Sunrise premium packets” inside a polythene cover which was kept
in a blue colour rexine bag and this contraband, the appellant/accused was in
possession of for the purpose of transporting the same from Chennai to
Trivandrum with intent to export the same to Colombo and hence the charge for
the commission of offence punishable under sections 8(c) read with 21 of NDPS

Act.
3. The trial Court, based on the said charge, has conducted the trial
of the case with such opportunity afforded to the appellant/ accused during
which, the prosecution, which is burdened with proof of the case registered
with such standard of proof beyond all reasonable doubts, has examined 6
witnesses for oral evidence as P.Ws. 1 to 6 besides marking 33 documents as
Exs. P1 to P33 for documentary evidence and further marking 12 material
objects as M.Os. 1 to 12.
4. The trial Court then having framed proper point for consideration
of the case of the prosecution in the light of aforementioned evidence and
appreciating the same in its own way has ultimately arrived at the conclusion
holding the appellant/accused guilty of the said offence charged and would
pass the sentence extracted supra.
5. It is only challenging the said conviction and sentence, the

appellant/accused has come forward to prefer the above appeal on grounds such
as (i) that the learned judge failed to consider the noncompliance of Sections
42(1), 42(2) and 50(1) of NDPS Act; (ii) that the learned Judge failed to note
that Ex.P1 is not the actual information recorded in the unit, but the
informant appeared before him and gave a written information as per the
evidence of P.W.1 and the same has not been placed before the Court and Ex.P.1
is nothing but a copy of the extract from the original and it would go to show
that the same had been submitted to the Assistant Director by PW1 in
compliance of Section 42(2) of NDPS Act; (iii) that the learned Judge
failed to note that the seizure was effected between sunset and sunrise (if)
that regarding compliance of Section 50(1) of the Act, contradictory evidence
has been given by witnesses which the learned Judge has failed to note; (iv)
that the learned Judge has further failed to note that the accused was not
informed of his valuable right guaranteed under Section 50(3) of NDPS Act; (v)
that the learned Judge has failed to note the contradictions in between the
evidences of P.Ws. 1,3 and 6; (vi) that the vitral contradiction with regard
to the quantum of contraband seized has also been not noted by the trial
court; that according to P.W.1, the total quantity was each 400 grams in two
packets,but according to P.W.3 each 400 grams in two packets, but the same
according to P.W.6, the first packet containing 600 grams and the second
packet containing 200 or 300 grams; that according to mahazar, the first
packet contained 418 grams and the second packet contained 394.6 grams totally
weighing 812 grams whereas uniformly all the three witnesses would say that
the seized contraband was weighing 800 grams only; ( vii) that the learned
Judge failed to appreciate that while the accused was travelling in an
auto-rickshaw, the same was intercepted by the Officers at Valluvarkottam
along with his friend and they both were detained at the office and later
releasing his friend, the case was foisted against him and this factor is
corroborated by P.W.6 and therefore the leaned Judge should have arrived at

the conclusion to hold that the prosecution has failed to prove its case
beyond reasonable doubt and should have acquitted the appellant.
6. During arguments, the learned counsel appearing on behalf of the

appellant, besides giving a picture of the judgment delivered by the lower
Court and the sentence passed and further mentioning the number of witnesses
examined, documents and M.Os. marked, would further say that the case of the
prosecution is that on 7.10.1998, P.W.1 the Intelligence Officer of the N.C.B.
received the information at 4.30 p.m. that day in writing through a letter,
that the person staying in a lodge at Mannadi was in possession of 800 grams
of Heroine, describing the identity of the accused and that the contraband was
concealed in ‘Sunrise Premium’ packets and that person was likely to leave for
Trivandrum and recording this information, a copy was taken out by P.W.1 and
handed over to the Assistant Director, Narcotics Control Bureau; that P.W.1
along with P.W.3 and two Intelligence Officers and accompanied by the
informant and police personnel to Madras Central Railway Station and at 5.45
p.m. they procured an independent witness one Rajan who identified the
accused kept a dark blue Rexine bag; that P.W.1 intercepted him and the
accused took out two packets each containing 800 grams of Heroin and handed
over to P.W.1 stating that those packets contained Heroin weighing 400 grams;
that the first packet weighs 418.2 grams and the second packet weighs 394.6
grams; that the samples taken from each packet was tested and found to be
Heroin; that P.W.1 prepared the seizure mahazar and P.W.3 another Intelligence
Officer issued summons to the accused to appear before the respondent; that
the accused was also taken to the Office of the Narcotics Control Bureau and
on the next day the accused is alleged to have given a voluntary confession
and after recording the same P.W.3 arrested and remanded the accused for
judicial custody.
7. The learned counsel would continue to argue to the effect that the
prosecution out of 6 witnesses have made P.Ws. 1,3 and 6 to speak about the
occurrence; that P.W.1 is the seizure Officer, P.W.3 is the accompanied
Officer and P.W.6 is the independent witness; that the mahazar witness is said
to have gone by 8.30 p.m. whereas to the said time the mahazar could not have
been prepared in the manner alleged by the prosecution; that P.W.6 would
depose to the effect that the accused is a native of Kerala but is residing at
Adayar; that what quantity was seized under the mahazar is the vital evidence.
At this juncture, the learned counsel would cite a judgment reported in 2000
SCC (Crl.) 496 (Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat) for the
proposition that if information is not reduced into writing, the prosecution
cannot initiate the proceeding but adverse inference could be drawn. In the
above judgment the Hon’ble Apex Court has held:
“ In view of Section 42 of the Narcotic Drugs and Psychotropic Substances Act,
1985, if the officer has reason to believe from personal knowledge or prior
information received from any person that any narcotic drug or psychotropic
substance (in respect of which an offence has been committed) is kept or

concealed in any building, conveyance or enclosed place, it is imperative that

the officer should take it down in writing and he should forthwith send a copy
thereof to his immediate official superior. The action of the officer, who
claims to have exercised it on the strength of such unrecorded information,
would become suspect, though the trial may not vitiate on that score alone.
Nonetheless the resultant position would be one of causing prejudice to the
accused.”
Citing the above judgment the learned counsel would point out that the
substance of information should be placed before the Court; that Section 42
would apply also for enclosed place and Section 43 to public places and would
cite another judgment of the Hon’ble Apex Court reported in 2000 SCC (Crl.)
829 (Koluttumottil Razak Vs. State of Kerala). In the above judgment the
Hon’ble Apex Court has held:
“Non-compliance with the requirements of Section 42(1) and (2) would render
the resultant search and seizure suspect, though that by itself may not
vitiate the proceedings.”
8. For the compliance of Section 50 of the NDPS Act citing the

evidence of P.Ws. 1, 2 and 3 the learned counsel would cite yet another
judgment of the Hon’ble Apex Court reported in 2000 SCC (Crl.) 216 (T. Hamza
Vs. State of Kerala) In the above judgment it is held:
“Section 50 provides a reasonable safeguard to the accused before a search of

his person is made by an officer authorised under Section 42 to make it. The
provision is also intended to avoid criticism of arbitrary and high-handed
action against authorised officers. The legislature in its wisdom considered
it necessary to provide such a statutory safeguard to lend credibility to the
procedure keeping in view the severe punishment prescribed in the statute.”
“The question that falls for determination is whether on the facts and in the
circumstances of the case as revealed from the evidence on record the search
of the person of the accused and the recovery of the packets of brown sugar
from the possession was vitiated on account of non-compliance with the
requirements of Section 50 of the NDPS Act. From the discussions in the
impugned judgment it appears that the contention did not find favour with the
courts.”
.... Courts have to be satisfied at the trial of the case about due
compliance with the requirements provided in Section 50. No presumption under
Section 54 of the Act can be raised against an accused, unless the prosecution
establishes it to the satisfaction of the court, that the requirements of
Section 50 were duly complied with.”
.... A conviction resulting from an unfair trial is contrary to our concept
of justice. The use of evidence collected in breach of the safeguards
provided by Section 50 at the trial would render the trial unfair.”
On such arguments the learned counsel for the appellant would pray to allow

the appeal setting aside the conviction and sentence passed by the lower
court.
9. In reply the learned Government Advocate on the Criminal side

would submit that the accused is a Srilankan National; that on reliable
information he was intercepted at Central Railway Station and immediately
after being accosted he volunteer to hand over two packets of Sunrise Premium
both containing 800 grams of Heroine; that he has given a confession statement
admitting the offence under Ex.P9 which is admissible in evidence and this
confession statement was not at all retracted; that even during the
questioning under Section 313 of Cr.P. C. he has not specifically denied the
confession statement. The learned Government Advocate at this juncture would
cite a judgment reported in (1997)3 SCC 721 (K.I.Pavunny Vs. Assistant
Collector (HQ), Central Excise Collectorate, Cochin) wherein the Hon’ble Apex
Court has held:
“A confessional statement recorded by reason of satisfactory compulsion or
given voluntarily by the accused pursuant to his appearing against summons or
on surrender cannot be said to have been obtained by threat, inducement or
promise and hence is admissible in evidence for prosecution under Section 135
of the Customs Act or other relevant statues. Such a confessional statement
although subsequently retracted, if on facts found voluntary and truthful, can
form the exclusive basis for conviction and it is not necessary that each
detail in the retracted confession be corroborated by independent evidence.
It is however, a rule of prudence and practice that the Court seeks assurance
from other facts and circumstances to corroborate the retracted confession.”
10. So far as the information is concerned the learned Government

Advocate would point out that the information passed on has been recorded in
Ex.P1. Citing from P.W.1’s deposition regarding the confession statement the
learned counsel would cite yet another judgment of the Hon’ble Apex Court
reported in 2002 (7) Supreme 122 (Narayanaswamy Ravishankar Vs. Asst.
Director, Directorate of Revenue Intelligence) wherein it is held:
“ As search and seizure of narcotic drug was not conducted on person of the
accused Section 50 of NDPS Act was not attracted and as search and seizure was
done at the airport, a public place, Section 42 of the Act was not attracted.”
On such arguments the learned Government Advocate would ultimately pray to

dismiss the above Criminal Appeal confirming the conviction and sentence as
passed by the trial Court.
11. In consideration of the facts pleaded, having regard to the

materials placed on record and upon hearing the learned counsel for both, no
doubt, it is a case registered under Sections 8(c) and 21 of the NDPS Act for
the commission of the offence perpetrated on the part of the sole accused, the
appellant herein for being in possession of Heroin weighing 800 grams
contained in two Sunrise Premium packets each containing 400 grams and the

officials of the Central Narcotic Control Bureau accompanied by the informant

and independent witness proceeded to the Central Railway Station, Chennai, and
on being identified by the informant, they accosted the accused and having
been caught hold of and during interrogation the accused volunteered to take
out from a blue rexin bag that he was keeping with him, two Sunrise premium
packets and handed over the same with the officials and on inspection of the
said packets it came to be known that the packets contained Heroine weighing
800 grams and the accused would also give a voluntary confession in which he
would reveal that the said Heroin was meant for being transported to
Trivandram so as to be sent to Srilanka and the officials particularly P.Ws.1
and 3 who were respectively at the relevant point of time working as the
Intelligence Officer, Central Narcotic Control Bureau, among whom P.W.1 would
examine the accused with whom the accused would give a voluntary confession
stating that he was staying in Fousia Lodge at Mannadi and is ready to entrain
to Trivandram and would hand over the contraband mentioned supra weighing 800
grams of Heroin stating that he got them from one Manoj; that on being tested
on the spot P.Ws.1 and 3 being satisfied that they were Heroin, P.W.1 took
samples from each packet weighing 5 grams and would send the same for chemical
analysis. He would also seize the other materials kept with him which that
they would recover i.e. the lock and key, the Indian Currency and Srilankan
Currency all under the cover of mahazar which would be marked as Ex.P2
attested by P.W.1 and the accused and affixing the official seal on the
contraband seized i.e. M.Os. 1 to 10 and summoning P.W.3 also, P.W.1 would
complete the other legal formalities of causing the arrest of the accused
remanding him to judicial custody and would also submit the seized articles to
the Special Court requesting the Court for referring the samples for chemical
analysis and to obtain the report from the analyst; that the requisition and
the M.Os. would be ordered to be kept in safe custody by the police
themselves and would refer the samples with the test memo. to the chemical
analysis centre along with Ex.P3 letter and the test memo. which would be
marked as Ex.P4; that on completion of the chemical analysis, Ex.P5 report
would be sent from the Chemical Analysis Centre; that P.W.1 would also send a
special report in Ex.P6 to his superior.
12. P.W.2 the chemical analysis would also depose to the effect that
she received the samples on 14.10.1998 through the Intelligence Officer
attached to the Narcotics Control Bureau viz., Rajasekaran along with the
Court letter and the samples; that under the supervision of this witness one
T.V.Radhakrishnan analysed the sample and submitted the report. Through this
witness not only Ex.P3 letter by the Court, but also Ex.P4 test memo. and
Ex.P5 report would marked. This witness would clearly give the report to the
effect that the sample was Di-Acetyl Morphine @ Heroin.
13. P.W.3 is also the Intelligence Officer attached to the Central

Narcotics Control Bureau, who identifying the accused would adduce evidence to
the effect that on 7.5.1998 his Assistant Director sent for him and got him

introduced to P.W.1 stating that he has got reliable information of

transportation of Narcotics substances at Central Railway Station and wanted
him to initiate measures in accordance with law; that securing two independent
witnesses and taking position at Waltax Road in between 6.15 and 6.30 a.m.
the accused came there who was identified by the informant and the witnesses
introducing themselves to the accused they expressed the desire to examine him
under the NDPS Act and the accused having revealed himself P.Ws. 1 and 3
informed him of his right to be searched either in the presence of a Gazetted
Officer or a Magistrate in compliance of Section 50 of the NDPS Act, but the
accused was not amicable for that and volunteered to be searched by P.Ws.
further the accused opened the rexin bag and handed over the contraband and
all other acts done as deposed in the evidence of P.W.1. This witness would
also depose very much in the same style and language without any major
contradiction.
14. P.W.4, yet another Officer of the Central Narcotics Control

Bureau who was authorised to examine the witnesses and record their statement
would submit that on 9.12.1998 he had submitted a report in Ex.P.20; that the
accused was in possession of a ticket to travel on 7.1 0.1998 from Chennai to
Trivandrum; that he had reserved the said ticket in advance; that on perusal
of the requisition he noted the name of the accused as Leo Joseph; that the
accused offered the address as No.18, Mannar Mudali Street, Vadapalani,
Chennai-93; that he sent for the owner of the building one Perumal and
examined him on 22.12.1998 and he confirmed there that from 1996 one Leo
Joseph was a tenant in his building and in the same year in August he vacated
the place and his statement would be signed by this witness and the said
Perumal and marked as Ex. P23; that the said Perumal identified the said
accused by photograph Ex.P.24 and would further depose that the accused had
also booked the flight ticket in Air Lanka and the same would be marked as
Ex.P.30; that the ticket had been obtained in the name of one L.Bernard; that
he submitted his report to the superior in this regard in Ex.P25; that he sent
for the recovery mahazar witnesses and the summons would be marked as Ex.P.26;
that he examined the witnesses on 28.12.1998 and the statement given in
writing by the mahazar witness Jayakrishnan which would be marked as Ex.P27;
that the manager of the lodge in which the accused was staying at Madras was
also required to appear before him as Ex.P28 and the written statement given
by the said person would be marked as Ex.P.29; that this witness would also
identify the accused in the photograph, which would be marked as Ex.P30; that
himself and Ilangovan signed Exs.P.28 and P.29; that he submitted all those
documents in the Court along with the complaint.
15. P.W.5 is one Ilangovan who is the manager of the Fousia Lodge
wherein the accused was staying and would depose that he was working in the
said capacity for four years; that the accused stayed in the lodge in the name
of Leo Joseph, further stating that he belonged to Madurai; that in between

July and October, 1998 the accused used to come and stay in the lodge but he
could not exactly say on which dates he stayed there; that he would identify
his signature in Ex.P28; that two months after the staying of the accused, he
was examined by the officers; that the first statement would be marked as
Ex.P29 and the photograph of the accused from which this witness identified
him would be marked as Ex.P30.
16. P.W.6 would depose that on 7.12.1998 to see a person he went to
the Madras Central Railway Station when he was requested to be a witness in
the detection of a crime along with another Ranjan, an auto driver they both
agreed; that around 6.15 that evening an Officer identified a person and he
was nabbed by them and the officers besides getting themselves introduced to
him, they also revealed the purpose for which they came and this witness would
further narrate the other happenings regarding the accused entrusting the
contraband weighing 800 grams contained in two Sunrise premium packets; that
on further inspection of the bag they found Indian Currency, Srilankan
Currency, the Railway ticket for Trivandram and then the Officers weighed the
contraband which according to the witness was 600 grams and another 200 or 300
grams; that they took samples and sealed the same and prepared mahazar to the
happenings in which the witness would sign and the same would be marked as
Ex.P2; that the blue colour zipper bag would be marked as M.O.9; that the
witness would also sign M.Os.1 and 2 containing the brown sugar; that the
sample would be then put inside the sealed covers which would be marked as
M.Os.3 to 6; that the currency notes would be marked as M.O.10 and the Railway
ticket and the cover in which it was kept is M.O.7; that in all these the
witness would sign; that the sealed cover would be marked as M.O.8; that this
witness would sign all the M.Os.1 to 10.
17. All the witnesses would be cross-examined on the part of the
learned counsel appearing on behalf of the accused and in fact the defence was
not able to make its mark in the cross-examination either making only dent
into the central frame of the prosecution case depicted through the witnesses
and the documents and the M.Os. nor had there been any major gain for the
defence which is noteworthy. The contradictions marked are also very minor
and not conspicuous so as to say that the prosecution case is weakened by any
violent or jumping contradictions and therefore it could be safely concluded
that neither the basic structure of the prosecution case put up in the manner
aforementioned nor the manner in which they have been either performed or
brought into evidence the defence was able to score any point and hence it
could be concluded that neither is there any statutory violation nor
procedural flaw in the observance of the mandatory provisions of law such as
Sections 42, 50, 57 etc., of the NDPS Act nor is this Court able to find any
of the procedural failure so as to brand violation of the principles of
natural justice or lack of opportunity. The uniform case put up by the
prosecution has been brought to fore by positive, reliable and acceptable
evidence and there is no strong reason for the lower Court to have not adopted
any other course in order to arrive at a different conclusion than to the one

that has been arrived at to hold that the prosecution has proved its case to
the standard of proof required by law that is beyond all reasonable doubts
thereby convicting and sentencing the accused in the manner aforementioned.
18. This Court is in perfect agreement that not only the conclusions
arrived at by the trial Court but also the manner in which such conclusions
have been arrived at and therefore within the meaning of the propositions of
law brought-forth through the judgments cited by the prosecution and the
defence as well the only conclusion that could be arrived at by this Court is
to concur with the conclusions of the trial Court and not to cause any
interference into the well considered and merited judgment of the trial Court
in arriving at the conclusion to hold that the prosecution has succeeded in
bringing home the guilt of the accused.
19. The accused is a Srilankan National and he has also been in the
habit of operating in different names in order to conceal his identity since
he was indulging in criminal activities such as meddling with the Narcotics
cases which is prohibited by law. Ample evidence has been placed on record
not only in proof of the accused being in possession of Heroin weighing 800
grams kept in two packets and concealed in the blue zipper bag and that proper
evidence by the independent witnesses would corroborate the version of the
prosecution in the witness box thus bringing home the guilt of the accused
absolutely no strong evidence or circumstances were brought-forth during the
trial by the defence attributing any strong motives for the P.Ws. 1,3 and 6
who are the vital witnesses in the proof of the prosecution case nor any other
relevant material has been brought on record in proof of the innocence of the
accused and all the evidence would only point towards the guilt of the accused
without the least doubt being entertained and therefore, not only from the
oral evidence adduced one by one but also from the documents and material
objects and on a overall consideration of the totality of the circumstances,
it comes to be known that the prosecution has proved its case against the
accused beyond all reasonable doubts and the trial Court in appreciation of
the said evidence has arrived at the right conclusion to hand down the
convicting judgment thereby convicting and sentencing the accused in the
manner extracted supra. Hence the interference of this appellate Court sought
to be made into the well considered and merited judgment of the Court of
Additional Special Judge for NDPS Act, Chennai is not only unnecessary but
unwarranted as well.
In result,
(i) the above criminal appeal fails and the same is dismissed.
(ii) The conviction and sentence passed by the Court of Additional
Special Judge for NDPS Act, Chennai as per its judgment dated 16.2.20 01 made
in C.C.No.255 of 1998 is confirmed.

Index:Yes
Internet:Yes
gr.
To
1. The Additional Special Judge for NDPS Act, Chennai.
2. The Public Prosecutor, High Court, Chennai.

DATED: 29/04/2003
CORAM
Leon Bernard .. Appellant
-Vs-
Central rep. by
South Zonal Unit,
Chennai-90. .. Respondent
Criminal Appeal preffed u/s 374 of Cr.P.C. as stated therein.
For Appellant: Mr.R.C.Paul Kanagaraj
For Respondent:Mr.Jeyachandran
for Mr.P.N.Prakash
Special Public Prosecutor.
:JUDGMENT
This Criminal Appeal is directed against the judgment dated 16.2.200 1

rendered in C.C.No.255 of 1998 by the Court of Additional Special Judge for
NDPS Act Cases, Chennai thereby convicting the appellant for an offence
punishable under Sections 8(c) read with 21 of the NDPS Act and sentencing him
to undergo R.I. for ten years and to pay a fine of Rs.One lakh in default to
undergo a further R.I.for a period of six months.
2. The charge against the appellant/accused before the trial Court

was that on 7.10.1998, the officers of Narcotic Control Bureau, Chennai,
intercepted the accused, on a specific information, at Chennai Central Railway
Station and on enquiry the accused handed over the Heroin weighing about 820
grams in two Sunrise premium packets inside a polythene cover which was kept
in a blue colour rexine bag and this contraband, the appellant/accused was in
possession of for the purpose of transporting the same from Chennai to
Trivandrum with intent to export the same to Colombo and hence the charge for
the commission of offence punishable under sections 8(c) read with 21 of NDPS

Act.
3. The trial Court, based on the said charge, has conducted the trial
of the case with such opportunity afforded to the appellant/ accused during
which, the prosecution, which is burdened with proof of the case registered
with such standard of proof beyond all reasonable doubts, has examined 6
witnesses for oral evidence as P.Ws. 1 to 6 besides marking 33 documents as
Exs. P1 to P33 for documentary evidence and further marking 12 material
objects as M.Os. 1 to 12.
4. The trial Court then having framed proper point for consideration
of the case of the prosecution in the light of aforementioned evidence and
appreciating the same in its own way has ultimately arrived at the conclusion
holding the appellant/accused guilty of the said offence charged and would
pass the sentence extracted supra.
5. It is only challenging the said conviction and sentence, the

appellant/accused has come forward to prefer the above appeal on grounds such
as (i) that the learned judge failed to consider the noncompliance of Sections
42(1), 42(2) and 50(1) of NDPS Act; (ii) that the learned Judge failed to note
that Ex.P1 is not the actual information recorded in the unit, but the
informant appeared before him and gave a written information as per the
evidence of P.W.1 and the same has not been placed before the Court and Ex.P.1
is nothing but a copy of the extract from the original and it would go to show
that the same had been submitted to the Assistant Director by PW1 in
compliance of Section 42(2) of NDPS Act; (iii) that the learned Judge
failed to note that the seizure was effected between sunset and sunrise (if)
that regarding compliance of Section 50(1) of the Act, contradictory evidence
has been given by witnesses which the learned Judge has failed to note; (iv)
that the learned Judge has further failed to note that the accused was not
informed of his valuable right guaranteed under Section 50(3) of NDPS Act; (v)
that the learned Judge has failed to note the contradictions in between the
evidences of P.Ws. 1,3 and 6; (vi) that the vitral contradiction with regard
to the quantum of contraband seized has also been not noted by the trial
court; that according to P.W.1, the total quantity was each 400 grams in two
packets,but according to P.W.3 each 400 grams in two packets, but the same
according to P.W.6, the first packet containing 600 grams and the second
packet containing 200 or 300 grams; that according to mahazar, the first
packet contained 418 grams and the second packet contained 394.6 grams totally
weighing 812 grams whereas uniformly all the three witnesses would say that
the seized contraband was weighing 800 grams only; ( vii) that the learned
Judge failed to appreciate that while the accused was travelling in an
auto-rickshaw, the same was intercepted by the Officers at Valluvarkottam
along with his friend and they both were detained at the office and later
releasing his friend, the case was foisted against him and this factor is
corroborated by P.W.6 and therefore the leaned Judge should have arrived at

the conclusion to hold that the prosecution has failed to prove its case
beyond reasonable doubt and should have acquitted the appellant.
6. During arguments, the learned counsel appearing on behalf of the

appellant, besides giving a picture of the judgment delivered by the lower
Court and the sentence passed and further mentioning the number of witnesses
examined, documents and M.Os. marked, would further say that the case of the
prosecution is that on 7.10.1998, P.W.1 the Intelligence Officer of the N.C.B.
received the information at 4.30 p.m. that day in writing through a letter,
that the person staying in a lodge at Mannadi was in possession of 800 grams
of Heroine, describing the identity of the accused and that the contraband was
concealed in Sunrise Premium packets and that person was likely to leave for
Trivandrum and recording this information, a copy was taken out by P.W.1 and
handed over to the Assistant Director, Narcotics Control Bureau; that P.W.1
along with P.W.3 and two Intelligence Officers and accompanied by the
informant and police personnel to Madras Central Railway Station and at 5.45
p.m. they procured an independent witness one Rajan who identified the
accused kept a dark blue Rexine bag; that P.W.1 intercepted him and the
accused took out two packets each containing 800 grams of Heroin and handed
over to P.W.1 stating that those packets contained Heroin weighing 400 grams;
that the first packet weighs 418.2 grams and the second packet weighs 394.6
grams; that the samples taken from each packet was tested and found to be
Heroin; that P.W.1 prepared the seizure mahazar and P.W.3 another Intelligence
Officer issued summons to the accused to appear before the respondent; that
the accused was also taken to the Office of the Narcotics Control Bureau and
on the next day the accused is alleged to have given a voluntary confession
and after recording the same P.W.3 arrested and remanded the accused for
judicial custody.
7. The learned counsel would continue to argue to the effect that the
prosecution out of 6 witnesses have made P.Ws. 1,3 and 6 to speak about the
occurrence; that P.W.1 is the seizure Officer, P.W.3 is the accompanied
Officer and P.W.6 is the independent witness; that the mahazar witness is said
to have gone by 8.30 p.m. whereas to the said time the mahazar could not have
been prepared in the manner alleged by the prosecution; that P.W.6 would
depose to the effect that the accused is a native of Kerala but is residing at
Adayar; that what quantity was seized under the mahazar is the vital evidence.
At this juncture, the learned counsel would cite a judgment reported in 2000
SCC (Crl.) 496 (Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat) for the
proposition that if information is not reduced into writing, the prosecution
cannot initiate the proceeding but adverse inference could be drawn. In the
above judgment the Hon ble Apex Court has held:
In view of Section 42 of the Narcotic Drugs and Psychotropic Substances Act,
1985, if the officer has reason to believe from personal knowledge or prior
information received from any person that any narcotic drug or psychotropic
substance (in respect of which an offence has been committed) is kept or

concealed in any building, conveyance or enclosed place, it is imperative that

the officer should take it down in writing and he should forthwith send a copy
thereof to his immediate official superior. The action of the officer, who
claims to have exercised it on the strength of such unrecorded information,
would become suspect, though the trial may not vitiate on that score alone.
Nonetheless the resultant position would be one of causing prejudice to the
accused.
Citing the above judgment the learned counsel would point out that the
substance of information should be placed before the Court; that Section 42
would apply also for enclosed place and Section 43 to public places and would
cite another judgment of the Hon ble Apex Court reported in 2000 SCC (Crl.)
829 (Koluttumottil Razak Vs. State of Kerala). In the above judgment the
Hon ble Apex Court has held:
Non-compliance with the requirements of Section 42(1) and (2) would render
the resultant search and seizure suspect, though that by itself may not
vitiate the proceedings.
8. For the compliance of Section 50 of the NDPS Act citing the

evidence of P.Ws. 1, 2 and 3 the learned counsel would cite yet another
judgment of the Hon ble Apex Court reported in 2000 SCC (Crl.) 216 (T. Hamza
Vs. State of Kerala) In the above judgment it is held:
Section 50 provides a reasonable safeguard to the accused before a search of

his person is made by an officer authorised under Section 42 to make it. The
provision is also intended to avoid criticism of arbitrary and high-handed
action against authorised officers. The legislature in its wisdom considered
it necessary to provide such a statutory safeguard to lend credibility to the
procedure keeping in view the severe punishment prescribed in the statute.
The question that falls for determination is whether on the facts and in the
circumstances of the case as revealed from the evidence on record the search
of the person of the accused and the recovery of the packets of brown sugar
from the possession was vitiated on account of non-compliance with the
requirements of Section 50 of the NDPS Act. From the discussions in the
impugned judgment it appears that the contention did not find favour with the
courts.
.... Courts have to be satisfied at the trial of the case about due
compliance with the requirements provided in Section 50. No presumption under
Section 54 of the Act can be raised against an accused, unless the prosecution
establishes it to the satisfaction of the court, that the requirements of
Section 50 were duly complied with.
.... A conviction resulting from an unfair trial is contrary to our concept
of justice. The use of evidence collected in breach of the safeguards
provided by Section 50 at the trial would render the trial unfair.
On such arguments the learned counsel for the appellant would pray to allow

the appeal setting aside the conviction and sentence passed by the lower
court.
9. In reply the learned Government Advocate on the Criminal side

would submit that the accused is a Srilankan National; that on reliable
information he was intercepted at Central Railway Station and immediately
after being accosted he volunteer to hand over two packets of Sunrise Premium
both containing 800 grams of Heroine; that he has given a confession statement
admitting the offence under Ex.P9 which is admissible in evidence and this
confession statement was not at all retracted; that even during the
questioning under Section 313 of Cr.P. C. he has not specifically denied the
confession statement. The learned Government Advocate at this juncture would
cite a judgment reported in (1997)3 SCC 721 (K.I.Pavunny Vs. Assistant
Collector (HQ), Central Excise Collectorate, Cochin) wherein the Hon ble Apex
Court has held:
A confessional statement recorded by reason of satisfactory compulsion or
given voluntarily by the accused pursuant to his appearing against summons or
on surrender cannot be said to have been obtained by threat, inducement or
promise and hence is admissible in evidence for prosecution under Section 135
of the Customs Act or other relevant statues. Such a confessional statement
although subsequently retracted, if on facts found voluntary and truthful, can
form the exclusive basis for conviction and it is not necessary that each
detail in the retracted confession be corroborated by independent evidence.
It is however, a rule of prudence and practice that the Court seeks assurance
from other facts and circumstances to corroborate the retracted confession.
10. So far as the information is concerned the learned Government

Advocate would point out that the information passed on has been recorded in
Ex.P1. Citing from P.W.1 s deposition regarding the confession statement the
learned counsel would cite yet another judgment of the Hon ble Apex Court
reported in 2002 (7) Supreme 122 (Narayanaswamy Ravishankar Vs. Asst.
Director, Directorate of Revenue Intelligence) wherein it is held:
As search and seizure of narcotic drug was not conducted on person of the
accused Section 50 of NDPS Act was not attracted and as search and seizure was
done at the airport, a public place, Section 42 of the Act was not attracted.
On such arguments the learned Government Advocate would ultimately pray to

dismiss the above Criminal Appeal confirming the conviction and sentence as
passed by the trial Court.
11. In consideration of the facts pleaded, having regard to the

materials placed on record and upon hearing the learned counsel for both, no
doubt, it is a case registered under Sections 8(c) and 21 of the NDPS Act for
the commission of the offence perpetrated on the part of the sole accused, the
appellant herein for being in possession of Heroin weighing 800 grams
contained in two Sunrise Premium packets each containing 400 grams and the

officials of the Central Narcotic Control Bureau accompanied by the informant

and independent witness proceeded to the Central Railway Station, Chennai, and
on being identified by the informant, they accosted the accused and having
been caught hold of and during interrogation the accused volunteered to take
out from a blue rexin bag that he was keeping with him, two Sunrise premium
packets and handed over the same with the officials and on inspection of the
said packets it came to be known that the packets contained Heroine weighing
800 grams and the accused would also give a voluntary confession in which he
would reveal that the said Heroin was meant for being transported to
Trivandram so as to be sent to Srilanka and the officials particularly P.Ws.1
and 3 who were respectively at the relevant point of time working as the
Intelligence Officer, Central Narcotic Control Bureau, among whom P.W.1 would
examine the accused with whom the accused would give a voluntary confession
stating that he was staying in Fousia Lodge at Mannadi and is ready to entrain
to Trivandram and would hand over the contraband mentioned supra weighing 800
grams of Heroin stating that he got them from one Manoj; that on being tested
on the spot P.Ws.1 and 3 being satisfied that they were Heroin, P.W.1 took
samples from each packet weighing 5 grams and would send the same for chemical
analysis. He would also seize the other materials kept with him which that
they would recover i.e. the lock and key, the Indian Currency and Srilankan
Currency all under the cover of mahazar which would be marked as Ex.P2
attested by P.W.1 and the accused and affixing the official seal on the
contraband seized i.e. M.Os. 1 to 10 and summoning P.W.3 also, P.W.1 would
complete the other legal formalities of causing the arrest of the accused
remanding him to judicial custody and would also submit the seized articles to
the Special Court requesting the Court for referring the samples for chemical
analysis and to obtain the report from the analyst; that the requisition and
the M.Os. would be ordered to be kept in safe custody by the police
themselves and would refer the samples with the test memo. to the chemical
analysis centre along with Ex.P3 letter and the test memo. which would be
marked as Ex.P4; that on completion of the chemical analysis, Ex.P5 report
would be sent from the Chemical Analysis Centre; that P.W.1 would also send a
special report in Ex.P6 to his superior.
12. P.W.2 the chemical analysis would also depose to the effect that
she received the samples on 14.10.1998 through the Intelligence Officer
attached to the Narcotics Control Bureau viz., Rajasekaran along with the
Court letter and the samples; that under the supervision of this witness one
T.V.Radhakrishnan analysed the sample and submitted the report. Through this
witness not only Ex.P3 letter by the Court, but also Ex.P4 test memo. and
Ex.P5 report would marked. This witness would clearly give the report to the
effect that the sample was Di-Acetyl Morphine @ Heroin.
13. P.W.3 is also the Intelligence Officer attached to the Central

Narcotics Control Bureau, who identifying the accused would adduce evidence to
the effect that on 7.5.1998 his Assistant Director sent for him and got him

introduced to P.W.1 stating that he has got reliable information of

transportation of Narcotics substances at Central Railway Station and wanted
him to initiate measures in accordance with law; that securing two independent
witnesses and taking position at Waltax Road in between 6.15 and 6.30 a.m.
the accused came there who was identified by the informant and the witnesses
introducing themselves to the accused they expressed the desire to examine him
under the NDPS Act and the accused having revealed himself P.Ws. 1 and 3
informed him of his right to be searched either in the presence of a Gazetted
Officer or a Magistrate in compliance of Section 50 of the NDPS Act, but the
accused was not amicable for that and volunteered to be searched by P.Ws.
further the accused opened the rexin bag and handed over the contraband and
all other acts done as deposed in the evidence of P.W.1. This witness would
also depose very much in the same style and language without any major
contradiction.
14. P.W.4, yet another Officer of the Central Narcotics Control

Bureau who was authorised to examine the witnesses and record their statement
would submit that on 9.12.1998 he had submitted a report in Ex.P.20; that the
accused was in possession of a ticket to travel on 7.1 0.1998 from Chennai to
Trivandrum; that he had reserved the said ticket in advance; that on perusal
of the requisition he noted the name of the accused as Leo Joseph; that the
accused offered the address as No.18, Mannar Mudali Street, Vadapalani,
Chennai-93; that he sent for the owner of the building one Perumal and
examined him on 22.12.1998 and he confirmed there that from 1996 one Leo
Joseph was a tenant in his building and in the same year in August he vacated
the place and his statement would be signed by this witness and the said
Perumal and marked as Ex. P23; that the said Perumal identified the said
accused by photograph Ex.P.24 and would further depose that the accused had
also booked the flight ticket in Air Lanka and the same would be marked as
Ex.P.30; that the ticket had been obtained in the name of one L.Bernard; that
he submitted his report to the superior in this regard in Ex.P25; that he sent
for the recovery mahazar witnesses and the summons would be marked as Ex.P.26;
that he examined the witnesses on 28.12.1998 and the statement given in
writing by the mahazar witness Jayakrishnan which would be marked as Ex.P27;
that the manager of the lodge in which the accused was staying at Madras was
also required to appear before him as Ex.P28 and the written statement given
by the said person would be marked as Ex.P.29; that this witness would also
identify the accused in the photograph, which would be marked as Ex.P30; that
himself and Ilangovan signed Exs.P.28 and P.29; that he submitted all those
documents in the Court along with the complaint.
15. P.W.5 is one Ilangovan who is the manager of the Fousia Lodge
wherein the accused was staying and would depose that he was working in the
said capacity for four years; that the accused stayed in the lodge in the name
of Leo Joseph, further stating that he belonged to Madurai; that in between

July and October, 1998 the accused used to come and stay in the lodge but he
could not exactly say on which dates he stayed there; that he would identify
his signature in Ex.P28; that two months after the staying of the accused, he
was examined by the officers; that the first statement would be marked as
Ex.P29 and the photograph of the accused from which this witness identified
him would be marked as Ex.P30.
16. P.W.6 would depose that on 7.12.1998 to see a person he went to
the Madras Central Railway Station when he was requested to be a witness in
the detection of a crime along with another Ranjan, an auto driver they both
agreed; that around 6.15 that evening an Officer identified a person and he
was nabbed by them and the officers besides getting themselves introduced to
him, they also revealed the purpose for which they came and this witness would
further narrate the other happenings regarding the accused entrusting the
contraband weighing 800 grams contained in two Sunrise premium packets; that
on further inspection of the bag they found Indian Currency, Srilankan
Currency, the Railway ticket for Trivandram and then the Officers weighed the
contraband which according to the witness was 600 grams and another 200 or 300
grams; that they took samples and sealed the same and prepared mahazar to the
happenings in which the witness would sign and the same would be marked as
Ex.P2; that the blue colour zipper bag would be marked as M.O.9; that the
witness would also sign M.Os.1 and 2 containing the brown sugar; that the
sample would be then put inside the sealed covers which would be marked as
M.Os.3 to 6; that the currency notes would be marked as M.O.10 and the Railway
ticket and the cover in which it was kept is M.O.7; that in all these the
witness would sign; that the sealed cover would be marked as M.O.8; that this
witness would sign all the M.Os.1 to 10.
17. All the witnesses would be cross-examined on the part of the
learned counsel appearing on behalf of the accused and in fact the defence was
not able to make its mark in the cross-examination either making only dent
into the central frame of the prosecution case depicted through the witnesses
and the documents and the M.Os. nor had there been any major gain for the
defence which is noteworthy. The contradictions marked are also very minor
and not conspicuous so as to say that the prosecution case is weakened by any
violent or jumping contradictions and therefore it could be safely concluded
that neither the basic structure of the prosecution case put up in the manner
aforementioned nor the manner in which they have been either performed or
brought into evidence the defence was able to score any point and hence it
could be concluded that neither is there any statutory violation nor
procedural flaw in the observance of the mandatory provisions of law such as
Sections 42, 50, 57 etc., of the NDPS Act nor is this Court able to find any
of the procedural failure so as to brand violation of the principles of
natural justice or lack of opportunity. The uniform case put up by the
prosecution has been brought to fore by positive, reliable and acceptable
evidence and there is no strong reason for the lower Court to have not adopted
any other course in order to arrive at a different conclusion than to the one

that has been arrived at to hold that the prosecution has proved its case to
the standard of proof required by law that is beyond all reasonable doubts
thereby convicting and sentencing the accused in the manner aforementioned.
18. This Court is in perfect agreement that not only the conclusions
arrived at by the trial Court but also the manner in which such conclusions
have been arrived at and therefore within the meaning of the propositions of
law brought-forth through the judgments cited by the prosecution and the
defence as well the only conclusion that could be arrived at by this Court is
to concur with the conclusions of the trial Court and not to cause any
interference into the well considered and merited judgment of the trial Court
in arriving at the conclusion to hold that the prosecution has succeeded in
bringing home the guilt of the accused.
19. The accused is a Srilankan National and he has also been in the
habit of operating in different names in order to conceal his identity since
he was indulging in criminal activities such as meddling with the Narcotics
cases which is prohibited by law. Ample evidence has been placed on record
not only in proof of the accused being in possession of Heroin weighing 800
grams kept in two packets and concealed in the blue zipper bag and that proper
evidence by the independent witnesses would corroborate the version of the
prosecution in the witness box thus bringing home the guilt of the accused
absolutely no strong evidence or circumstances were brought-forth during the
trial by the defence attributing any strong motives for the P.Ws. 1,3 and 6
who are the vital witnesses in the proof of the prosecution case nor any other
relevant material has been brought on record in proof of the innocence of the
accused and all the evidence would only point towards the guilt of the accused
without the least doubt being entertained and therefore, not only from the
oral evidence adduced one by one but also from the documents and material
objects and on a overall consideration of the totality of the circumstances,
it comes to be known that the prosecution has proved its case against the
accused beyond all reasonable doubts and the trial Court in appreciation of
the said evidence has arrived at the right conclusion to hand down the
convicting judgment thereby convicting and sentencing the accused in the
manner extracted supra. Hence the interference of this appellate Court sought
to be made into the well considered and merited judgment of the Court of
Additional Special Judge for NDPS Act, Chennai is not only unnecessary but
unwarranted as well.
In result,
(i) the above criminal appeal fails and the same is dismissed.
(ii) The conviction and sentence passed by the Court of Additional
Special Judge for NDPS Act, Chennai as per its judgment dated 16.2.20 01 made
in C.C.No.255 of 1998 is confirmed.

Index:Yes
Internet:Yes
gr.
To
1. The Additional Special Judge for NDPS Act, Chennai.
2. The Public Prosecutor, High Court, Chennai.

DATED: 27/06/2003
CORAM
C.A.No.962 of 2001
Ramasamy .. Appellant
-Vs-
State
Inspector of Police
NIB/CID Thuthukudi
Cr.No.33 of 1998. .. Respondent
This criminal appeal is preferred under S.374 of The Code of Criminal

Procedure against the judgment of the Special District and Sessions Judge,
Madurai made in C.C.No.32 of 1999 dated 10.9.2001.
!For Appellant : Mr.A.A.Selvam
^For Respondent : Mr.O.Srinath,

Government Advocate (Crl. Side)
:JUDGMENT
The sole accused, who stood charged, tried and convicted and sentenced
to undergo R.I. for 10 years under S.8(c) r/w 18 of the N.D.P.S. Act and to
pay a fine of Rs.1.00 lakh and in default to undergo R.I. for 2 years has
brought forth this appeal.
2. Short facts necessary for the disposal of this appeal are:
P.W.6 Beski, Sub Inspector, attached to NIB/CID, on receipt of an
information on 15.10.1998 at about 10.00 A.M. as to the transport of narcotic
substance, reduced the same into writing and informed the same by telephone to
P.W.7 Jeyakumar, Inspector. He accompanied by P.W.1 H.Velusamy, Village
Administrative Officer and his menial proceeded to the Central Bus Stand,
Tuticorin, where two persons were identified in front of Paul Sornam Lodge.
Of those two persons, the appellant/accused was one. In the presence of the
witnesses, they were enquired. The appellant and the other person informed
that they were in possession of two kilos of abin each. They were informed of
their right that they could be searched before a Magistrate or before a
gazetted Officer, and the same was replied not necessary. Under such

circumstances, in the presence of the witnesses, the appellant and the other
person produced the parcels what they kept secret in their waist, and the
parcel produced by the appellant was unfolded. It was weighed in the presence
of the witnesses. The samples were taken, and they were given mark, and the
rest was also put in a parcel, and they were also given mark as B1 and B2.
The seizure athatchi was prepared and signed by the witnesses. The accused
was arrested and remanded to judicial custody. A report was sent to the
Inspector, marked as Ex.P10 . The F.I.R., the samples and the rest of the
seized contraband all were produced before the concerned Magistrate's Court on
the same day. On requisition, the samples were sent for analysis, while the
rest was returned to the Inspector to be kept in his custody. On 21.10.1 998,
the samples were sent for analysis, and they were accordingly done and found
to be a narcotic substance, according to the evidence of P.W.6. On completion
of the investigation, P.W.7 filed the charge sheet under S.8(c) r/w 18 of the
NDPS Act.
3. In order to prove the charge levelled against the appellant/
accused, the prosecution examined 7 witnesses and marked 12 exhibits and 3
material objects. When the appellant/accused was questioned under S.313 of
Cr.P.C. as to the incriminating circumstances found in the evidence of the
prosecution witnesses, he denied the same as false. No defence witness was
examined. After consideration of the rival submissions and materials
available, the trial Court found him guilty under S.8(c) r/w 18 of NDPS Act
and sentenced him as referred to above.
4. Arguing for the appellant, the learned Counsel interalia raised
the following points:
(a) The first line of attack was that the place where the appellant,
according to the prosecution, was intercepted and seizure was made, was the
place within the compound of one Sornam Lodge, and hence, even as per the
evidence available, it was a private place, and under such circumstances, the
mandatory provisions of S.42 of the NDPS Act should have been followed, but in
the instant case, it was not done so, and thus, it was fatal to the
prosecution case, and the lower Court should have rejected the case of the
prosecution. In order to substantiate the same, the learned Counsel relied on
the following decisions: (1) 1997 Crl.L.J. 513; (2) 1998 Crl.L.J. 132 and
(3) 2000 Crl.L. J. 1384.
(b) The second point that was raised by the learned Counsel was that
according to the prosecution case, the seizure was made on 15.10.98 before,
and the contraband seized along with the samples were produced before the
concerned Magistrate's Court only on 16.10.98 and again produced before the
said Court on 20.10.98; and that there is no evidence to show in whose custody
the contraband was from 16.10.98 to 20.10.98.
(c) Even for sending the samples for analysis, a huge delay has been
noticed, and apart from that, 25 grams of samples was seized and sent for
analysis. But according to the evidence of P.W.5 Analyst, the samples that
was sent weighed only 19.16 gram, and there was no possibility of loss of

weight when once it was sealed and brought for analysis, and thus, the
prosecution has not explained the said deficiency.
(d) The final report of the entire prosecution case should have been
sent to the immediate superiors by the concerned Officer as required by S.57
of the NDPS Act. Though it was not mandatory, it has got to be taken into
consideration along with the other aspects of the matter, which would no doubt
affect the prosecution case. From the evidence of P.W.10, it would be clear
that no such report was received by him, and under the circumstances, the
lower Court should have rejected the case of the prosecution, and in view of
the above noncompliance of the mandatory provisions of the Act, the accused is
entitled for an acquittal.
5. In answer to the above contentions, the learned Government
Advocate (Criminal Side) would urge that the prosecution by proper and
sufficient evidence has proved that the appellant/accused was in possession of
the contraband namely 2 kilos of abin, and after following the procedural
formalities, they were seized; that the place of interception and seizure was
only a public place, and hence, no question would arise as to the compliance
of S.42 of the NDPS Act, but, in the circumstances, it would attract only S.43
of the Act; that so far as the full report was concerned, the provisions under
S.57 of the Act does not spell any mandate, but, in the instant case, there is
available evidence to show that actually such a report was perused by P.W.7,
the next day; that according to the prosecution case, 25 grams of abin was
taken as samples from the seized contraband and was produced before the
concerned Magistrate's Court, which has accordingly been sent for analysis,
and in such circumstances, the fact to that extent has been proved, and hence,
the contention that 19.16 grams, according to P.W.1's evidence, was available
at the time of test, which is less than what has been taken naturally cannot
be given much weight, as the prosecution agency had no hands to do anything in
the same, and therefore, the lower Court was perfectly correct in convicting
the appellant/accused, and the judgment of the lower Court has got to be
sustained.
6. This Court has given its sincere and earnest consideration on the
contentions put forth by either side. The Court is of the firm view that
there is no substance in this appeal.
7. The prosecution has proved through the evidence of P.W.1 V.A.O.,
an independent witness that on 15.10.1998 at about 10.00 A.M. P.W.1 after
informing the right of the appellant as to the search as contemplated under
S.50 of the NDPS Act made a search of the packet which he voluntarily produced
and found two kilos of opium which was seized in the presence of the witnesses
under the mahazar. Samples have been taken, and in doing so also, procedure
has been followed. All the samples and the contraband were produced before
the concerned Magistrate's Court, and there is endorsement available to show
that on production, the rest of the contraband namely 1950, the remainder,
except the sample, was returned to be kept in the custody of the Department,
and the same was in the custody of the Department till 20.10.1998. It was

produced before the said Court. Therefore it is futile on the appellant's

side to state that there is no evidence as to the custody of the same from the
period 16.10.98 to 20.10.98. From the available evidence, it would be clear
that it was in the custody of the Department. The samples have been subjected
to test, and the narcotic substance has been found, as per the evidence of
P.W.5 Analyst. Regarding the loss after the samples were taken and before the
test was made, the Court cannot give much weight. In this context, the
decision of the Apex Court reported in AIR 1999 SUPREME COURT 2355 (PON
ADITHAN V. DEPUTY DIRECTOR, NARCOTICS CONTROL BUREAU, MADRAS) and relied on
by the learned Government Advocate has got full application to the case on
hand. On that account, no doubt can be cast on the prosecution case.
8. The Court is unable to agree with the contention of the
appellant's side that the search was made not in a public place, but within
the compound of the said lodge, and hence, mandatory provision of S.42 of the
NDPS Act should have been complied with, in view of the fact that from the
available materials and that the witnesses have clearly spoken to that effect.
That apart, it is found in the mahazar "giHa g!; epiyak;. EiHt[ thapy; mUnf
cs;s ghy; brhh;zk; yhl;;$; Kd;g[ itj; J". This place where the search and
seizure was made cannot at any stretch of imagination be taken to be as a
private place. Needless to say that it was a public place. It has been held
by the Apex Court in a decision reported in (2002) 8 SUPREME COURT CASES 7 (
NARAYANASWAMY RAVISHANKAR VS. ASSTT. DIRECTOR, DIRECTORATE OF REVENUE
INTELLIGENCE) that if search and seizure are conducted in a public place, in
such case, S.43 of the NDPS Act is applicable and not S.42 of the Act, and
hence, the question of non-compliance, if any, of the provisions under S.42 of
the NDPS Act in the instant case was wholly irrelevant. Applying the said
decision of the Apex Court, the said contention of the appellant's side does
not carry any substance.
9. In the light of the above reasons, the Court is of the view that
there is no merit in this appeal, and the same deserves to be dismissed.
However, the Court is of the opinion that the default sentence awarded by the
trial Court namely 2 years R.I. has got to be reduced.
10. Therefore, the default sentence of R.I. for 2 years imposed by
the lower Court is modified, and in default of payment of fine awarded by the
lower Court, the appellant/accused shall undergo R.I. for six months. In
other respects, the judgment of the lower Court is confirmed. With the above
modification, this criminal appeal is dismissed.
Index: Yes
Internet: Yes
To:
1) The Special District and Sessions Judge-NDPS, Madurai.
3) The Superintendent, Central Prison, Madurai.
4) The Public Prosecutor, High Court, Madras.


6) Mr.O.Srinath, Government Advocate (Crl. Side), High Court
Madras
7) The Inspector of Police, NIB/CID, Thuthukudi.
nsv/

Dated: 28/01/2003
Coram
The Honourable Mr. Justice V. KANAGARAJ
Criminal Original Petition No.1478 of 2003

and
Criminal M.P. No.525 of 2003
1. M.G. Selvaraj
2. Dr. S.E. Pitchai Thambi
3. S. Emperumal .. Petitioners
-Vs-
Intelligence Officer,
South Zonal Unit. .. Respondent
Petition filed under Section 407 of Criminal Procedure Code as

stated therein.
For petitioner: Ms. Vedavalli
For respondent: Mr. O. Srinath (Criminal Side)
:O R D E R
This petition is filed under Section 407 of the Criminal
Procedure Code praying that in the circumstances of the case, this Court may
order transferring the case in CC. No.276 of 2001 pending trial on the file
of the Principal Special Judge for NDPS Act cases at Chennai to any another
Court having competent jurisdiction.
2. Today on presenting the facts and circumstances brought

forth on the part of the petitioners, having regard to the materials placed on
record and upon hearing the learned counsel for the petitioners and the
Special Prosecutor for NDPS cases, this Court is able to see that on certain
procedural aspects, the petitioner has become aggrieved against the trial
Court and hence transfer is sought for as it is prayed for in the petition.
3. So far as certain personal allegations raised against the

Presiding Officer in this case is concerned, the same has been dismissed by
the Order of this Court dated 31.10.2002 on suitable and valid reasons

assigned. Therefore, it is not necessary on the part of this Court to go into

those allegations again.
4. So far as this petition, that has been placed before this

Court at present, is concerned, suffice it to say that the case is concerned
with a big haul of 15 kgs of heroin and in fact on the earlier occasion, this
Court has fixed norms for trial having gone into the facts and circumstances
of the case put up by the petitioner/A2 in Criminal O.P. No.9229 of 2002
wherein he has prayed for the extension of time for completion of the trial
that was fixed earlier by six months and this Court on such considerations was
able to fix the same extending the trial upto 12.3.2003 as per the Order dated
13.9.2002 and in these circumstances, the petitioner has alleged that the
Judge has chosen to complete the trial in a hurried manner and has passed some
adverse comments and that he chose to compel four accused to cross examine
PW.1 without considering that the matter has already become subjudice on given
facts of the Criminal OPs and Criminal MPs.
5. Further, it is alleged that in spite of their Senior

Counsel appointed to defend the case, having seriously fallen ill and admitted
to the hospital, the trial Court has chosen to examine all the witnesses with
a rush. Having become aggrieved of such happenings, the petitioners have
ultimately come forward to file the above Criminal OP seeking to transfer the
case in CC No.276 of 2001 pending trial on the file of the Court of Principal
Special Judge for NDPS Act cases.
6. The learned counsel for the petitioners today would bring

to the notice of this Court two earlier judgments of the learned single Judges
of this Court and Madhya Pradesh High Court. The first one is reported in
1988 LW (Crl.) 256 held in the case of Sudarsanam and others vs. State,
Deputy Superintendent of Police, Ponneri Division, wherein in para 12, the
learned Judge has remarked:
"the trial Court under such situations, has first to decide, whether
factually, the prayer to decide, whether factually, the prayer of the accused
that the counsel has suddenly taken ill, is true or whether it is only an
attempt to get an adjournment to protract the proceedings. If the Court feels
that factually, the statement that the counsel has suddenly taken ill, is true
and if the Court finds, that ever thereafter, the accused has taken every
steps within his powers, to engage another counsel and despite the same he had
not succeeded and was forced to pray for an adjournment, the Court has to
given an adjournment. The second proviso to S.309(2), Crl.P.C., which lays
down that no adjournment or postponement shall be granted without examining
the witnesses who are in attendance also permits the Sessions Judge for
special reasons to be recorded in writing to grant an adjournment, even when
witnesses are in attendance. The section also provides, that in appropriate
cases, adjournment could be granted, on payment of costs, either by the
prosecution or by the accused. Under those circumstances, the mere fact that

witnesses are in attendance, would not be ground for refusing an adjournment

and examining the witnesses when the accused are not defended by any counsel.
As indicated earlier, the question of adjournment would come in, only if the
Court is satisfied, that the request for adjournment is necessitated, by the
sudden illness of the counsel".
7. The second judgment is one reported in 1990 Crl. L.J.

1490 held in the case of Himachalsing vs. State of M.P., wherein it is held
that,
"No doubt adjournment of a special case must be strictly deprecated, but all
the same absence of defence counsel on account of his illness, upon whom his
client has full faith, is also not less (important) and therefore, in all
fairness of the trial, if the accused is not found indulging in protracting
the trial by seeking adjournment on flimsy ground, the trial is to be
adjourned on the ground of illness of the counsel of the accused so as to
afford him full opportunity to defend him."
8. From the judgments cited supra, the learned Judges have

only given their findings as to what are the circumstances under which it is
reasonable on the part of the trial Court to grant adjournment and what are
the other circumstances in which such adjournments need not be granted in
consideration of the relevant provisions of law envisaged under Section 309(2)
of the CRPC. But, these remarks are in no manner an answer for a transfer
that is sought for on ground of nongranting of adjournments and therefore, the
transfer case has to be dealt with at different parameters which are not even
brought forth in a satisfactory manner in the pleadings on the part of the
petitioner nor do the judgments cited help the Court in arriving at a
conclusion regarding the case in hand, which is for the transfer of the case
pending trial from the trial court to some other Court having competent
jurisdiction.
9. If at all, the petitioner is aggrieved in any manner in

following the procedures established by law or running short of time so far as
the norms fixed by this Court earlier, the petitioner would be entitled for an
extension of time and not the transfer from the Court of original jurisdiction
which has already examined many witnesses and is ceased of the subject matter.
To avoid many other complications, it is always better not to transfer the
case unless very strong reasons prevail for transfer.
10. In the above circumstances, in the above Criminal O.P
seeking transfer of the case in hand, if this Court has to arrive at a valid
conclusion it should be mentioned that neither the reasons sustain nor are
they sufficient nor are the judgments cited are to the point of transfer and
therefore, the only conclusion that could be validly arrived at by this Court
in the circumstances of the case is, to answer the prayer in the negative
since on facts brought forth, the transfer sought to be effected from the
Court of original jurisdiction cannot be done in law.

In result, the above Criminal O.P is without merit and the

same is dismissed as such. No costs. Consequently, the Criminal M.P. No.
52 5 of 2003 is closed.
Index: Yes
Internet: Yes
asvm
To
1. The Principal Special Judge
for NDPS Act cases
at Chennai.
2. The Public Prosecutor,

High Court, Madras.
3. The Intelligence Officer,

South Zonal Unit.

DATED: 04/02/2003
CORAM
1. K.Thambiraja
2. Siva @ Sivalingam .. Appellants
-Vs-

Narcotic Control Bureau,
South Zone, T.Nagar, Madras. .. Respondent
Criminal Appeal is directed against the judgment dated

3.10.1996 passed in C.C.No.169 of 1994 of by the Court of Special Judge for
NDPS Act, Madras, as stated therein.
!For Appellants: Mr.P.Venkatasubramaniam.
^For Respondent: Mr.P.N.Prakash, Spl.Public Prosecutor.
:JUDGMENT
The above Criminal Appeal is directed against the judgment
dated 3 .10.1996 passed in C.C.No.169 of 1994 by the Court of Special Judge
for NDPS Act Cases, Madras, thereby convicting the first appellant for an
offence punishable under Section 29 of N.D.P.S.Act and sentencing him to
undergo R.I. for ten years and to pay a fine of Rs.1 lakh in default to
undergo a further R.I. for a period of two years and convicting the second
appellant for an offence punishable under Section 21 of N.D.P.S.Act and
sentencing him to undergo R.I. for ten years and to pay a fine of Rs. 1
lakh, in default to undergo a further R.I. for a period of two years.
2. Tracing the history of the case as projected by the

prosecution, it comes to be known that on 20.7.1994, based on an information,
the Officer of Narcotics Control Bureau, Madras visited Hotel Sri Krishna at
170,Linghi Chetty Street, Madras-1 and searched room No.209 under the
occupation of A.1 to A.3; that during the course of search, a black zipper
shoulder bag containing about 500 grams of heroin was found which belonged to
A.1. The statement of accused and materials collected revealed that A.1, A.2

and A.3 knowingly acted in conspiracy to purchase, possess, conceal, transport

and attempt to export to Sri Lanka about 500 grams of heroin, thus, the
accused A.1, A.2 and A.3 have committed the offence under Section 8, 23, r/w
29 of N.D.P.S. Act punishable under Section 21 of N.D.P.S.Act.
3. The Special Judge, N.D.P.S.Act Cases, Madras, having taken

the case on file and observing the usual formalities, would conduct a full
trial in which the prosecution has examined 7 witnesses for oral evidence as
P.Ws. 1 to 7 and marked 25 documents for documentary evidence as Exs.P1 to
P25 and 5 Material Objects as M.Os.1 to 5.
4. P.W.1,is the Intelligence Officer in Narcotic Control

Bureau, South Zonal Unit, T.Nagar, Madras and he would depose that he received
the information on 20.7.1994 about the commission of offence by the accused
got it reduced into writing as Ex.P1, reported the same to Superintendent of
Police and on permission, went to the spot and conducted the search wherein he
found M.O.1 zipper shoulder bag which belonged to A1, in which they found 5
polythene packets underneath the clothing each of which contained 100 grams of
Heroin and he seized the whole quantity of 500 grams further recovering
certain documents and observing the legal requirements as contemplated under
the Act, seized certain documents under the cover of Ex.P.2 Mahazar; that the
sample covers of the contraband are M.Os. 2 and 3 and the remaining cover
containing Heroin is M.O.4; that the brown cover containing the file NCB
polythene cover is M.O.5, the other documents recovered are Ex.P3, Ex.P4
series, Ex.P5 and Ex.P6; that he recorded Ex.P7 statement of the partner of
Hotel Srikrishna and submitted Ex.P8 report to the Superintendent of Police
under section 57 of the Act; that all the properties seized by P.W.1 were
handed over to the Godown Officer under Es.P9 forwarding Memo; that Ex.P10 is
the receipt issued and Ex.P11 is the remand report; that M.O.2 marked as S1
was sent to the Chemical Examiner along with Ex.P12 requisition.
5. P.W.2 is another Intelligence Officer, who would depose

that he recorded the statement of the 2nd accused on 20.7.1994 under Ex.P1 4
and arrested the 2nd accused on 21.7.1994 under Ex.P15 arrest memo; that
thereafter he sent Ex.P16 report under Section 57 of the Act to the higher
officials.
6. P.W.3, another Inspector who accompanied P.W.1 at the time

of raid, would depose that he recorded Ex.P16 statement of the first accused
and caused the arrest of the first accused on 21.7.1994 and sent a report in
Ex.P17 to the higher officials.
7. P.W.4, who is the Intelligence Officer of South zone

Narcotic Control Bureau would depose that he recorded the statement of Mr.
Kandasamy under Ex.P18 and after completing the investigation, he filed the
charge sheet against the accused. P.W.5 who is the Central Excise Inspector

would depose that he accompanied P.W.1 at the time of the raid and that he
recorded Ex.P19 statement of the third accused, prepared Ex.P20 arrest memo
and sent Ex.P.21 report under Section 57 of the Act. P.W.6 who is the
Chemical Analyst, would depose that she gave Ex.P22 report and Ex.P23, the
Test Memo. P.W.7 is the Receptionist of the hotel Sri Krishna who would
depose that he issued Ex.P24 , receipt for the room, Ex.25 is the extract of
the register of Hotel Sri Krishna.
8. The learned Special Judge, in consideration of the oral

and documentary evidence and in further consideration of the materials placed
on record and appreciating the same in the context of the facts and
circumstances of the case projected by the prosecution, has ultimately arrived
at the conclusion that the first appellant (A2) is guilty of the offence
punishable under Section 29 of the NDPS Act and the second appellant (A3) is
guilty of the offence punishable under Section 21 of the NDPS Act and thereby
convicting the sentencing the appellants as aforementioned. Aggrieved, the
appellants herein have come forward to prefer the above criminal appeal on the
ground as setforth in the grounds of appeal. The appeal preferred by the
first accused has not been taken up for consideration since he is reported
dead during the pendency of the appeal and none of his legal representatives
have come forward nor willing to prosecute the said appeal and hence the
Appeal preferred by these two appellants is heard and decided by this
judgment.
9. During arguments the learned counsel appearing on behalf

of the appellants besides submitting the memorandum of arguments, also
advanced his oral arguments, the sum and substance of which is that the
prosecution is burdened to prove its case beyond all reasonable doubts whereas
the appellants so far as the defence version is concerned, they can establish
their case with preponderance of probability and the Court can act on such
evidence and acquit the accused; that the prosecution has not examined any
independent witness to show that the investigation was above board and that it
followed the various mandatory provisions of law; that since the evidence of
the Officers are contrary to one another, an independent corroboration has
become necessary in the case of the prosecution; that the evidence of the
witnesses P.Ws.1 to 5 are not inspiring confidence; that P.W.6, Chemist, also
does not corroborate the official witnesses and hence there is a very chance
of foisting the case against the appellants.
10. Learned counsel would further submit that conscious

possession of Heroin was not proved so far as it is concerned with these
appellants; that the evidence and the confession statement under section 67 of
the Evidence Act which is permissible in law needs corroboration because of
the nature and time of confession, time of arrest, production before the
Magistrate etc.; that the incriminating circumstances were not brought forth

by the Special Judge so as to enable the accused to offer explanation in their

statement.
11. Learned counsel then pointed out the contradictions in

between the evidence of P.W.1 and the other witnesses regarding taking of the
samples; that P.W.1 states that from each packet they took 5 gms and after
collecting the same, he took two samples, whereas the evidence of the other
official witnesses who were present in the search along with P.W.1 have
deposed that the entire contraband of 500 gms was poured into one of the
packets, mixed thoroughly and only thereafter, two samples of 5 gms each were
taken; that these variations regarding the collection of samples clearly
establish the contradicting version among the P.Ws themselves; that the report
of P.W.6 Chemical examiner does no corelate the seizure; that P.W.1 states
that the officials took a kit and weighed and tested the contraband, whereas
the report of the Chemical examiner in Ex.P22 and P.23 coupled with the
evidence of P.W.6 , the samples were found to weigh 5.4 gms in each packet.
These are the doubtful circumstances created regarding the quantity of the
contraband seized.
12. Learned counsel would then point out that P.W.1 during
his cross-examination has stated that he did not have any idea whether any
raid was conducted at the house at Annanagar for Narcotic Drugs; that P.W.3 in
his cross-examination by the third accused specifically stated that when the
raid was conducted P.W.1 and P.W.2 were present; that even though the
prosecuting officers have searched the house of one Kandasamy as per the
evidence of P.W.3 and his statement was recorded by P.W.4 for no reason
assigned he has not been examined though his statement was obtained thereby
clearly showing that the investigation is not above board; that the statement
made by the said Kandasamy is material for the purpose of corroboration of the
statement made by the accused under Section 67 of the Act; that though the
statement made before the Officer is admissible under section 67 of the Act,
the following aspects do not lend credence to the statement made before them;
that the appellants and the first accused were taken into custody by the
authorities at 10 a.m. On 20.7.1994; that the search has been conducted at
7.30 a.m, though it is 8 a.m. that day as per the evidence.
13. It is P.W.1's evidence that (a) within a few minutes

after entering the room, they were able to take the contraband and prima facie
they came to the conclusion that the accused have committed the offence under
the N.D.P.S. Act. (b) that P.W.3's evidence in cross is that the accused and
other persons were brought to N.C.B office at about 10.a.m. on 20.7.1994; (c)
that the search, seizure, preparation of mahazar and recording of statement
including that of Kandasamy according to all the officials were over by 2 p.m.
and after 2. p.m. there were no progress in the investigation but the arrest
date has been shown as on 21.7.1994 at about 7 a.m. belatedly in order to
cover the delay since they were produced before the Magistrate only at 4.25

p.m. on 21.7.1994. No proper reason has been assigned for showing the arrest
of the accused the next day even though right from the time of search they
were under the custody of the departmental officials, P.Ws 1 to 5. (d) that
even though the recording of all the statements have been done between 10 a.m
and 12 p.m. On 20.7.1994 they along with the seized articles reached the
Court only on 21.7.1994 though the time is not mentioned by the Magistrate for
the receipt of those items though in the normal course it is done; that the
prosecution has not established that the statements were voluntary and not
recorded under coercion. The non-explanation by the prosecution regarding the
delay in arrest and causing production of the statements and articles before
the Court throw considerable doubt on the case of the prosecution, regarding
the voluntary rendering of the statement by the accused.
14. Learned counsel would then focus his attention on the

statutory compliance of Section 50 of the act. The non-compliance of Section
5 2(A) has also been admitted by P.w.1 in view of the Magistrate returning the
articles to the prosecution for being produced before the Court of Special
Judge, N.D.P.S. Cases on 22.7.1994 and the samples according to the evidence
weighing 5 gms but according to the chemical examiner weighing 5.4 gms. The
possibility of mixing spurious substance into the same cannot be ruled out.
These aspects were not at all considered by the Special Court, particularly
regarding the report sent under Section 57 to the higher authorities as
mandated by law which were received by the Magistrate on 21.7.1994 and without
the initials, date and time of the Magistrate, this throws doubts regarding
the recording of the statement, whether it was on 20.7.1994 or at the later
date in point of time; that the report sent to the superior officer regarding
the search and seizure since being the earliest document coming into
existence, has been sent along with the other report made under section 57
thereby showing that all the reports have been made after the arrest of the
accused on 20.7.1994 as a result of afterthought and hence the report sent to
the superior officers regarding the propriety of the search and seizure lend
no credence and it vitiates the conviction.
15. Regarding reliability of the evidence of P.W.7 on the

ground that he is the independent witness particularly for the purpose of
corroboration since he is the only witness attesting Ex.P2 Mahazar; that even
in the document the time of opening and closure are not mentioned but only the
time of search has been mentioned as at 8 a.m. It is the admitted case of
P.W.7 that he knows only Kannada language and cannot write English on his own
but his statement is in English running to three pages. Hence, it has to be
concluded that the statement of P.W.7 is not genuine. Moreover, the exact
date of reaching of this statement to the Court is not feasible and bluntly
only the date is offered as 12th which could be presumed as 12.10.1994 since
Ex.P9 document regarding the deposit of the contraband bears the seal of
12.10.19 94. All the above aspects throw considerable doubt regarding the

search, seizure and other procedures followed and hence the evidence of the
prosecution regarding these aspects has to be rejected in toto giving the
benefit of doubt to the accused.
16. The learned counsel would then argue that the reliance
placed by the prosecution on the entry register, train tickets, bus tickets,
telephone diary etc., cannot be taken on their face value of corroboration
because in the normal course, the train ticket is collected by the ticket
collector at the exit; that the ticket does not contain part iculars which
should have been entered therein and the reservation charge in this connection
has not been summoned for proof of the same, and hence it would not show the
travelling of the appellants by train; that the bus tickets cannot also be
used for corroboration to the statement made under section 57. Regarding the
lodge register, it is the prosecution case that they started on 14.7.1994 and
were staying at Kandasamy's house on 17.7.1994 but according to A3 they
travelled from Bombay; that the same according to A1 and A2 they started on
15.7.1994 and they came to Chennai and stayed in the Room No.209. Ex.P24 is
dated 16.4.1994; that the time of arrival is corrected. Even in Ex.P25 the
correction has been shown regarding the date and time; that the room has been
booked only for a day but according to P.w.7 the accused booked it for 3 days
but according to Ex.P24, the accused ought to have vacated on 19.7.1994 and
that on 20.7.1994 they would not have been present there; that the lodge
register has been corrected changing the date from 16.7.1994 to 17.7.1994, the
corrections are also not countersigned by P.W.7, hence from Exs.P24 and P.25
it cannot be suggested that they were present in Room No.209 on 20.7.1994. In
short, the learned counsel would exhort that all the above facts coupled with
the violation of Sections 50, 52, 52(A), 55 and 57 of the Act and the various
contradictions of the facts would make the conviction liable to be set aside.
17. The learned counsel would also rely on the following

judgments on certain legal propositions. The first one being that of the
Honourable Apex Court reported in 2000 Supreme Court Cases (Criminal) 829
(KOLUTTUMOTTIL RAZAK Vs. STATE OF KERALA) wherein, it has been held that "the
non-compliance of Sections 42 of the Act will render the search and seizure
suspicious and hence, the conviction under Section 21 has to be rejected".
The next judgment cited is also that of the Honourable Apex Court reported in
2000 Supreme Court Cases (Criminal) 1228 (K.MOHANAN Vs. STATE OF KERALA)
wherein, the mandatory requirement of Sections 50 and 57 of the N.D.P.S. Act,
is dealt with in the following terms:
"The main legal point canvassed before us is that the mandatory requirement in
Section 50 of the Act has not been complied with. It is recited in the
judgment that P.W.1, before the search was conducted, asked the appellant
whether he required to be produced before a gazetted officer or a Magistrate
for the purpose of search and that the appellant answered in the negative. In
order to ascertain whether the said recital is authentic, we called for the
original records. Though the evidence is recorded in vernacular we found from

the testimony of P.W.1 that the aforesaid recital is substantially correct."

"The Constitution Bench of this Court in State of Punjab Vs. Baldev Singh has
considered various aspects of the compliance of Section 50 of the Act. The
Bench has laid down the propositions of law of which the first and second are
extracted below: (SCC pp.208-09, para 57)
"57.(1) That when an empowered officer or a duly authorised officer acting on
prior information is about to search a person, it is imperative for him to
inform the person concerned of his right under sub-section (1) of Section 50
of being taken to the nearest gazetted officer or the nearest Magistrate for
making the search. However, such information may not necessarily be in
writing.
(2)That failure to inform the person concerned about the existence of
his right to be searched before a gazetted officer or a Magistrate would cause
prejudice to an accused".
18. The learned counsel would also cite many other judgments
for the need of the corroborative evidence to be adduced to that of the
official version. For instance two important judgments would be submitted
both of the Honourable Apex Court, the first one reported in 2000 SCC
(Criminal) 829 (KOLUTTUMOTTIL RAZAK Vs. STATE OF KERALA), wherein, it is held
that "Non-compliance with the requirements of Section 4 2 (1) and (2) would
render the resultant search and seizure suspect, though that by itself may not
vitiate the proceedings. ABDUL RASHID IBRAHIM MANSURI Vs. STATE OF GUJARAT,
(2000) 2 SCC 513 relied on. In the second judgment reported in 2001 Supreme
Court Cases (Criminal) 42 6 (GURBAX SINGH Vs. STATE OF HARYANA) the
Honourable Apex Court has held that "Provisions of Sections 52 and 57 are
directory and violation thereof would not ipso facto violate the trial or
conviction . However, investigating officer cannot totally ignore these
provisions. Such failure will have a bearing on appreciation of evidence
regarding arrest of the accused or seizure of the article."
19. The learned counsel would then submit that presumption

under Sections 35 and 54 of the Act has to be followed and citing from the
judgments reported in
(a) 2002 SCC (Crimes) 1035;
(b) 1998 MLJ (Criminal) 46; and
(c) 1954 MLJ (Criminal) 156.
the learned counsel would exhort that these judgments support the case of the
prosecution provided the accused are found in conscious possession of the
contraband, but in the case in hand the conscious possession of the contraband
by the appellants has not been established and the evidence of the prosecution
cannot be relied on since bereft of corroboration by independent witnesses and
also since there is considerable doubt about the raising of the presumption
under Sections 35 and 54 of the Act.
20. That in the recent decision of the Supreme Court reported

in JT 2002 (7) SC 245 (AVTAR SINGH AND OTHERS Vs. STATE OF PUNJAB) regarding
possession, it is held as follows:
"Possession is the core ingredient to be established before the accused in the
instant case are subjected to the punishment under Section 15. If the accused
are found to be in possession of poppy straw which is a narcotic drug within
the meaning of clause (xiv) of Section 2, it is for them to account for such
possession satisfactorily; if not, the presumption under Section 54 comes into
play. The word ' possession' no doubt has different shades of meaning and it
is quite elastic in its connotation. Possession and ownership need not always
go together but the minimum requisite element which has to be satisfied is
custody or control over the goods. Can it be said, on the basis of the
evidence available on record, that the three appellants One of whom was
driving the vehicle and other two sitting on the bags, were having such
custody or control ? It is difficult to reach such conclusion beyond
reasonable doubt. It transpires from evidence that the appellants were not
the only occupants of the vehicle. One of the persons who was sitting in the
cabin and another person sitting at the back of the truck made themselves
scarce after seeing the police and the prosecution could not establish their
identity. It is quite probable that one of them could be the custodian of
goods whether or not he was the proprietor. The persons who were merely
sitting on the bags, in the absence of proof of anything more, cannot be
presumed to be in possession of the goods. For instance if they are labourers
engaged merely for loading and unloading purposes and there is nothing to show
that he goods were at least in their temporary custody, conviction under
Section 15 may not be warranted. At best, they may be abettors, but, there is
no such charge here. True, their silence and failure to explain the
circumstances in which they were travelling in the vehicle at the odd hours,
is one strong circumstance that can be put against them. The object of
examination under Section 313, it is well known is to afford an opportunity to
the accused to explain the circumstances appearing in the evidence against
him. It is unfortunate that no question was asked about the possession of
goods. Having regard to the charge of which appellants were accused the
failure to elicit their answer on such a crucial aspect as possession, is
quite significant. In this state of things, it is not proper to raise a
presumption under Section 114 of Evidence Act nor is it safe to conclude that
the prosecution established beyond reasonable doubt that the appellants were
in possession of poppy husk which was being carried by the vehicle".
21. Extracting the paragraph from the above judgment the

learned counsel would submit that the Special Judge has neither questioned
about the appellants' conscious possession nor brought about the incriminating
aspects of the nature of evidence and their implications during questioning
under Section 313 Cr.PC. and hence, the appellants were not able to give
reasonable explanation.

22. The learned counsel would then state that P.W.1 has not
followed the mandate laid down under Section 42(1) of the N.D.P.S. Act,
wherein, he has to show his reasonable belief or ground for proceeding with
the search that in the case in hand only the information has been marked as
Ex.P.1 and no material has been marked to show the requirement of law
regarding reasonable belief or ground recorded anywhere and would cite the
judgment reported in 2002 (5) Supreme 545 (STATE OF ORISSA Vs. LAXMAN JENA)
wherein, it is held that "under second part of Section 42(1) of the Act
designated officer was under a legal obligation to comply with mandate of
proviso to sub-section (1) providing for recording of grounds of his belief to
make search in terms of power conferred upon him; that before making search,
officer concerned had not recorded reasons or grounds for his belief to make
search in terms of proviso to Section 42(1) of the Act Acquittal order is not
liable to be interfered with."
23. On such arguments, the learned counsel for the appellants

would ultimately pray to allow the appeal setting aside the conviction and
sentence as passed by the trial Court as per the judgment dated 3.10 .1996 in
C.C.No.169 of 1992.
24. On the part of the respondent, the Special Public

Prosecutor appearing on their behalf, would not only apprise this Court of the
facts and circumstances of the case of the prosecution, but also bring out
certain other facts in consideration of which, the trial Court has validly
arrived at a conclusion to convict and sentence the accused in this case. The
learned counsel would lay emphasis that it is heroin weighing 500 grams which
is the subject matter and both the appellants before this Court are Sri Lankan
Nationals; that the occurrence had taken place on 20.7.1994 and the judgment
has been delivered on 3 .10.1996 with R.I. for 10 years and a fine of Rs.one
lakh, in default to undergo further R.I. for 2 years; that the scene of
occurrence is Sri Krishna Hotel located at Lingi Chetty Street, Chennai; that
on definite information, the Officers of the Narcotic Control Bureau led by
P.W.1 went to the lodge and on checking the reception book of Arrival and
Departure, he found out the stay of the accused in Room No.2 09 of the Sri
Krishna Lodge and found Heroin weighing 500 grams being kept in a zipper and
the other two accused (A2 and A3) have knowingly acted in conspiracy to
conceal, transport and attempt to export the said item to Sri Lanka, thus,
they all committed the offences under Sections 8, 23 r/w. 29 of the N.D.P.S.
Act punishable under Section 21.
25. The learned Special Public Prosecutor would point out

that all the witnesses numbering seven have in an unequivocal voice deposed to
the crime of the accused and there is no much contradiction or inconsistency
or irregularity in their evidence as it is wrongly alleged on the part of the
appellants.

26. The learned Special Public Prosecutor would then cite the
judgment reported in 1998 M.L.J (Crl) (vol.42) 46 (ASSISTANT COLLECTOR OF
CUSTOMS, MADRAS v. GOVINDASAMY RAGUPATHY) and would recite para 22 which is
extracted hereunder:-
"With regard to the culpable mental state of the accused as envisaged

under Section 138-A of the Customs Act, the said section read as follows:-
"Presumption of culpable mental state:- (1) In any prosecution for an
offence under this Act which requires a culpable mental state on the part of
the accused, the Court shall presume the existence of such mental state but it
shall be a defence for the accused to prove the fact that he had no such
mental state but it shall be a defence for the accused to prove the fact that
he had no such mental state with respect to the act charged as an offence in
that prosecution.
Explanation: In this section, "Culpable mental state" includes
intention, motive, knowledge of fact and belief in, or reason to believed, a
fact.
(2) For the purposes of this section, a fact is said to be proved only
when the court believes it to exist beyond reasonable doubt and not merely
when its existence is established by a preponderance of probability."
From the reading of the above section along with the explanation it is made
clear in no uncertain terms the following dictum of law pertaining to the
presumption and the burden of proof so far as a case under the Customs Act is
concerned, especially when seizure of the contraband is undoubtedly from the
accused.
(i) That the court shall presume the existence of culpable mental
state on the part of the accused and the burden of the accused to prove the
fact that he had no such mental state is paramount and heavily cost on him;
(ii) As per the explanation to the above section, the "culpable mental
state" includes intention, motive, knowledge, belief or reason to believe a
fact.
(iii) The standard of proof expected from the accused under such
circumstances is beyond reasonable doubt and not preponderance of
probability."
27. The learned Special Public Prosecutor would cite from a

very old judgment reported in 1954 M.W.N.(Cr.) 136 (S.C.) (HEM RAJ v. STATE
OF AJMER) for the proposition that a confession can be corroborated by use of
materials already in the possession of the police.
28. The learned Special Public Prosecutor would also cite the
judgment reported in : 2000 (10) S.C.C. 312 (GANGA BAHADUR THAPA v. STATE
OF GOA) wherein it is held:-
"The only contention raised before us was that a room in a hotel when

it is occupied by a customer cannot be said to be a public place as no one has

thereafter a right to enter that room except the said occupier and the owner
of that room. we do not find any substance in this contention. The
explanation to section 43 makes it clear that for the purpose of that section
public place includes any public conveyance, hotel, shop, or other place
intended for use by, or accessible to, the public. It is not in dispute that
the said hotel was intended for use by, or accessible to, the public. Merely
because a customer is allowed to occupy a room in the hotel, it would not
cease to be a hotel. Even after occupation by a customer it would remain a
hotel and not a private property of the occupier. It would not cease to be a
public place as contemplated by Section 43. For that reason, we cannot accept
the contention that because the raid was made after sunset and no grounds as
contemplated by section 42 were recorded, the search was illegal and the
evidence regarding recovery pursuant to that illegal search was not
admissible."
29. The learned Special Public Prosecutor would also cite

from the judgment reported in 1997 (3) S.C.C. 721 (K.I. PAVUNNY v.
ASSISTANT COLLECTOR (HQ), CENTRAL EXCISE COLLECTORATE, COCHIN) wherein the
Hon'ble Supreme Court has held:-
"The question then is whether the retracted confessional statement

requires corroboration from any other independent evidence. It is seen that
the evidence in this case consists of the confessional statement, the recovery
panchnama and the testimony of P.Ws.2, 3 and 5. It is true that in a trial
and proprio vigore in a criminal trial, courts are required to marshal the
evidence. It is the duty of the prosecution to prove the case beyond
reasonable doubt. The evidence may consist of direct evidence, confession or
circumstantial evidence. In a criminal trial punishable under the provisions
of the I.P.C., it is now well-settled legal position that confession can form
the sole basis for conviction. If it is retracted, it must first be tested
whether confession is voluntary and truthful inculpating the accused in the
commission of the crime. Confession is one of the species of admission dealt
with under Sections 24 to 30 of the Evidence Act and Section 164 of the Code.
It is an admission against the maker of it, unless its admissibility is
excluded by some of those provisions. If a confession is proved by
unimpeachable evidence and if it is of voluntary nature, it when retracted, is
entitled to high degree of value as its maker is likely to face the
consequences of confession by a statement affecting his life, liberty or
property. Burden is on the accused to prove that the statement was obtained
by threat, duress or promise like any other person as was held in BHAGWAN
SINGH v. STATE OF PUNJAB (AIR 1952 S.C. 214). If it is established from the
record or circumstances that the confession is shrouded with suspicious
features, then it falls in the realm of doubt. The burden of proof on the
accused is not as high as on the prosecution. If the accused is able to prove
the facts creating reasonable doubt that the confession was not voluntary or

it was obtained by threat, coercion or inducement, etc., the burden would be

on the prosecution to prove that the confession was made by the accused
voluntarily. If the court believes that the confession was voluntary and
believes it to be true, then there is no legal bar on the court for ordering
conviction. However, the rule of prudence and practice does require that the
court seeks corroboration of the retracted confession from other evidence.
The confession must be one inculpating the accused in the crime. It is not
necessary that each fact or circumstance contained in the confession is
separately or independently corroborated. It is enough if it receives general
corroboration. The burden is not as high as in the case of an approver or an
accomplice in which case corroboration is required on material particulars of
the prosecution case. Each case would, therefore, require to be examined in
the light of the facts and circumstances in which the confession came to be
made and whether or not it was voluntary and true. These require to be tested
in the light of a given set of facts. The high degree of proof and probative
value is insisted in capital offences.
...
In HEM RAJ v. STATE OF AJMER (AIR 1954 S.C. 462), a three-Judge
Bench to which BOSE, J. was a member, was to consider whether retracted
confession of an accused could be corroborated from the material already in
the possession of the police prior to the recording of the confession.
Therein the confession was recorded under Section 164 of the Code during the
committal proceedings but at the trial it was retracted. This Court held that
the evidence already on record of the police could be used to corroborate the
retracted confession.
...
It is true that in criminal law, as also in civil suits, the trial
court and the appellate court should marshal the facts and reach conclusion,
on facts. In a criminal case, the prosecution has to prove the guilt beyond
doubt. The concept of benefit of doubt is not a charter for acquittal. Doubt
of a doubting Thomas or of a weak mind is not the road to reach the result.
If a Judge on objective evaluation of evidence and after applying relevant
tests reaches a finding that the prosecution has not proved its case beyond
reasonable doubt, then the accused is entitled to the benefit of doubt for
acquittal. The question then is whether the learned Single Judge of the High
court has committed any error of law in reversing the acquittal by the
Magistrate. Not every fanciful reason that erupted from flight of imagination
but was relevant and germane, requires to be tested. Reasons are the soul of
law. The best way to discover truth is through the interplay of viewpoints.
Discussion captures the essence of controversy by its appraisal of
alternatives, presentation or pros and cons and review on the touchstone of
human conduct and all attending relevant circumstances. Truth and falsity are
sworn enemies. Man may be prone to speak falsehood but circumstantial
evidence will not. Falsity is routed from man's proclivity to faltering but
when it is tested on the anvil of circumstantial evidence truth stands. On

scanning the evidence and going through the reasoning of the learned Single
Judge we find that the learned Judge was right in accepting the confessional
statement of the appellant Ex.P-4 to be a voluntary one and that it could form
the basis for conviction. The Magistrate had dwelt upon the controversy, no
doubt on appreciation of the evidence but not in proper or right perspective.
Therefore, it is not necessary for the learned Judge of the High Court to wade
through every reasoning and give his reasons for his disagreement with the
conclusion reached by the Magistrate. On relevant aspects, the learned Judge
has dwelt upon in detail and recorded the disagreement with the Magistrate and
reached his conclusions. Therefore, there is no illegality in the approach
adopted by the learned Judge. We hold that the learned Judge was right in his
findings that the prosecution has proved the case based upon the confession of
the appellant given in Ex.P-4 under Section 108 of the Evidence Act and the
evidence of P.Ws.2, 3 and 5. The prosecution proved the case beyond doubt and
the High Court has committed no error of law."
30. The learned Special Public Prosecutor would also cite the
judgment reported in 2002 S.C.C. (Cri) 1035 (A.K. MEHABOOB v. INTELLIGENCE
OFFICER, NARCOTICS CONTROL BUREAU) wherein it is held:
"The substance of the case against the three accused was this:-
On the strength of sleuth information the Intelligence
Officers of the Narcotics Control Bureau led by the Superintendent of the
Narcotics control Bureau, Cochin (P.W.1 and P.W.2) raided the house of the
appellant Naushad on 6.3.1994 at about 10.00 A.M. They found Divakaran (A-1)
and appellant Mehaboob (A-3) sitting in one room. On search, 251 grams of
brown sugar had been recovered from Divakaran, A-1. It was followed by
another search made in the house of the said Divakaran at about 7.00 P.M. and
then also a quantity of 251 grams of brown sugar had been recovered from a
suitcase kept in that house. All the three accused were arrested. Their
statements were recorded under Section 67 of the Act.
The case against appellant Naushad depends entirely on Exhibit P-8
statement made to the officer under Section 67. There is no dispute that if
the said statement is found to be genuine and reliable, the appellant Naushad
has no escape from conviction, for it contained a vivid description of the
transaction he entered into with Divakaran in the trafficking of narcotic
drugs 'heroin' and 'brown sugar'.
Smt.Malini Poduval, the learned counsel for the appellants, contended
that Exhibit P-8 cannot be relied on for more than one reason. One is that
the said statement had been retracted by the accused himself. Second is that
on 11.3.1994 the appellant Naushad informed the Magistrate in writing that the
said statement had been coaxed out from him. The third is that the said
retracted confession had no corroboration and, therefore, cannot be made the
basis for conviction.
There is nothing to indicate that Exhibit P-8 had been elicited from
A-2 by any coercion, threat or force and, therefore, the learned Single Judge

of the High Court had spurned down that contention. Regarding the complaint
alleged to have been made by the appellant Naushad on 11.3.1994, we have
perused it. His case therein was that he offered himself to be a witness in
the case and some reward was offered for it. It was on the said offer that he
agreed to sign the said statement. It must be remembered that the appellant
Naushad has no case that when he was produced before the Magistrate
immediately after his arrest, that he made any grievance of any maltreatment
administered to him by the members of the Narcotics Control Bureau. Wisdom
dawned on him (when the complaint dated 11.3.1994 was filed) to put up an
advance defence against the statement given by him under his own signatures.
Even then he did not think it necessary to make any allegation that any
intimidatory tactic, much less any third-degree method had been applied on
him. His case in the said complaint that a reward was offered to him and
hence he agreed to sign the statement is contrary to the present stand adopted
by him that he was coerced and threatened to make such a statement. The
learned Single Judge had rightly repelled the contentions made on behalf of
the appellant Naushad relating to Exhibit P-8.
Smt Malini Poduval, learned counsel for the appellants then contended
that there was violation of Sections 42 and 57 of the Act. Both contentions
cannot be countenanced by us for two reasons. One is that they were not
seriously pressed into service before the High Court. Second is that there is
no factual basis for such contentions. On the other hand, P.W.2 has said in
so many words that he has recorded the information in his personal diary as
well as in the official diary as soon as he got the information that narcotic
drugs were being transacted in the house of the appellant Naushad. P.W.2 had
admitted during cross-examination that he had submitted a report to his
superior officers. That statement shows that he had acted in conformity with
Section 57 of the Act.
As the appellant Naushad failed to succeed on any of the points raised
by him, we do not find any reason to interfere with the conviction and
sentence passed on him by the High Court."
31. The learned Special Public Prosecutor would also cite

from another judgment reported in JT 1999 (8) S.C. 293 (KALEMA TUMBA v.
STATE OF MAHARASHTRA AND ANOTHER) wherein the Hon'ble Supreme Court has held:
"Ms.M.Qamaruddin, learned counsel for the appellant, submitted that

the mandatory requirement of Section 50 of the N.D.P.S. Act was not complied
with and therefore the evidence regarding recovery and seizure of heroin
should be regarded as illegal. She further submitted that the appellant could
not have been convicted on the basis of that evidence. It was submitted by
her that the appellant was not told, before the search by the officers of the
Narcotic Control Bureau that he had a right to be searched in presence of a
Gazetted Officer or a Magistrate. This contention deserves to be rejected
because only when a person of an accused is to be searched then he is required

to be informed about his right to be examined in presence of a Gazetted

Officer or a Magistrate. As rightly pointed out by the High Court search of
baggage of a person is not the same thing as search of the person himself. In
STATE OF PUNJAB v. BALDEV SINGH (J.T. 1999 (4) S.C. 595) this Court has
held that the requirement of informing the accused about his right under
Section 50 comes into existence only when person of the accused is to be
searched. The decision of this Court in STATE OF PUNJAB v. JASBIR SINGH AND
OTHERS (J.T. 1995 (9) S.C. 308) wherein it was held that though poppy straw
was recovered from the bags of the accused, yet he was required to be informed
about his right to be searched in presence of a Gazetted Officer or a
Magistrate, now stands overruled by the decision in Baldev Singh's case
(supra). If a person is carrying a bag or some other article with him and
narcotic drug or the psychotropic substance is found from it, it cannot be
said that it was found from his 'person'. In this case, heroin was found from
a bag belonging to the appellant and not from his person and therefore it was
not necessary to make an offer for search in presence of a Gazetted Officer or
a Magistrate."
32. On such arguments the learned Special Prosecutor would

ultimately submit that there is no pith or substance in the arguments advanced
on behalf of the appellants, since the prosecution has not only put up a true
case, but also in total compliance of the mandatory provisions of law the
prosecution case has been investigated into and projected before the trial
Court and hence, in appreciation of such valid evidence made available the
trial Court has arrived at the conclusion to hold the accused guilty of the
offence charged awarding the sentence as prescribed by law and therefore,
there is absolutely no necessity on the part of this Court to cause
interference into the said judgment of the trial Court and would pray for
confirming the same.
33. In consideration of the facts pleaded, having regard

to the materials placed on record and upon hearing the learned counsel for
both, what could be assessed by this Court from the whole of the case, as put
up by the prosecution is that it is a case arising out of an offence alleged
to have been committed on the penal provisions of the N.D.P.S.Act punishable
under Sections 29 and 21 by both the accused on the case put up by the
prosecution that on 20-07-1994, on a reliable information the Officer from
Narcotics Control Bureau, Chennai, inspected the Hotel Sri krishna at 170,
Linghi Chetty Street, Chennai-1 and searched room NO. 209, which was under
the occupation of the A.1 to A.3, of whom the appellants are A.2 and A.3; that
during the course of search a black zipper shoulder bag containing about 500
grams of Heroin is said to have been found, which was belonging to the first
accused and the A.2 and A.3 joining hands with the first accused, acted in
conspiracy to purchase, possess, conceal, transport and attempt to export to
Sri Lanka the said Heroin, thus these accused committing the offence under

Sections 8 and 23 r/w. 29 of the N.D.P.S. Act punishable under Section 21 of

the said Act; that the Special Judge, N.D.P.S. Act cases conducted the trial,
during which the prosecution which is burdened with the proof of the said case
with such standard of proof beyond reasonable doubts have examined seven
witnesses, besides marking 25 documents and 5 material objects with no defence
witnesses or exhibits examined and marked and the said Judge in consideration
of the facts and circumstances of the case put up by the prosecution in the
light of the evidence placed on record and appreciating the same in its own
way would ultimately hold that the case of the prosecution was proved against
the accused beyond all reasonable doubts and convicted them in the manner
aforementioned, testifying the validity of which the first accused separately
and the A.2 and A.3 jointly have preferred the Appeals before this Court and
since, the first accused is reported dead, during the pendency of this Appeal,
only the above Appeal preferred by the A.2 and A.3 jointly in the above manner
has been heard and this judgment is being delivered.
34. The contraband alleged to have been seized from the

appellants by the Prosecuting Officials is Heroin, weighing 500 gms kept in
M.O.1 black zipper shoulder bag belonging to the first accused, packed in 5
polythene packets, each containing 100 gms. It is also the case of the
prosecution, that they also seized certain documents from the accused under
the cover of Ex.P.2, Mahazar; that the sample covers would be marked as M.Os.
2 and 3, the remaining Heroin contained in the cover as M.O.4 and the brown
cover with the Narcotics Control Bureau seal would be marked as M.O.5 and the
documents seized are Exs.P.3 to P.6, which are the ticket series, the
mini-telephone diary and the bus tickets; that M.O.2 marked as S.1 was sent to
the Chemical Examiner and Ex.P.22 is the Chemical Analyst Report, which is to
the effect that "The sample is in the form of brown coloured powder. It
answers test for the presence of Diacetyl Morphice (Heroin) covered under
Narcotics Drugs and Psychotropic Substances Act, 1985".
35. Among the witnesses examined, P.W.1 was the

Intelligence Officer in the Narcotics Control Bureau, South Zone Unit,
Chennai, who received the information that three Srilankan stay at Hotel
Srikrishna, 1 70, Linghi Chetty Street, Chennai-1, were in possession of 500
gms of Heroin and they were likely to proceed to Trichy and submitting Ex.
P.1, to his Superintendent on being permitted to proceed to the said Hotel and
conduct the search. He along with the other colleagues P.Ws. 2 to 5, visited
the said Hotel and met P.W.7, the Manager and the caretaker of the hotel and
on perusal of the hotel register raided the said room and seized the
contraband and secured the accused observing all legal requirements in the
manner already extracted supra, during the assessment of the evidence of those
witnesses.
36. P.Ws. 2 and 3 would also adduce evidence adhering the

evidence of P.W. 1, who obtained the written confession statement of the

second accused i.e., Ex.P.14, himself attesting as a witness and caused his
arrest under Ex.P.15, Seizure Memo and sent a report to the Higher Official in
Ex.P.16 and P.W.3, who also witnessed the occurrence and then obtained the
statement from one Kandasamy in Ex.P.16 and submitted the report in Ex.P.17.
It is P.W.4, who would also be present at the time the said Kandasamy gave the
report. P.W.5 would stand as a guard outside the room of the lodge and it is
this witness, who has examined the third accused and obtained the statement,
which was given in writing by the accused, which is Ex.P.19 and would cause
his arrest under the Ex.P.20, arrest memo and would send report under Section
57 of the N.D.P.S. Act to his superiors, which would be marked as Ex.P.21.
P.W.16 is the Analyst, who examined the sample of the contraband and certified
it to be Heroin as already seen. P.W.7 is the Manager and Receptionist and
would adduce evidence to the effect of the Officers of the Narcotics Control
Bureau approaching him and this witness would also ascertain safe for the
compliance of Section 50 to have conveyed and would narrate the whole
occurrence on the spot adhering the case of P.W.1, besides standing as a
witness to the Ex.P.2 Mahazar and seizure of M.Os. 1 to 4 under the cover of
Ex.P.7.
37. A study of the evidence adduced by all these witnesses

regarding the information and the raid undertaken at the Hotel, the seizure of
the contraband effected and the arrest of the accused in the presence of the
P.Ws. 1 to 5 and 7 and the certification of the Contraband as Heroin by
P.W.6, Chemical Analyst and the manner in which the seizure was effected, the
confession statement of the accused recorded, the arrest of the accused made
and the intimation under Section 57 of the N.D.P.S. Act to the superior
Officers have all been done in a satisfactory manner in accordance with the
provisions of law as evidenced by the exhibits and M.Os. Marked.
38. While that being so, the trial Court as per its
judgment would not only trace the facts and circumstances of the case, without
missing even the minute points to be verified on the part of the prosecution
and assessing the evidence adduced in all and appreciating the same in the
manner required by law would ultimately arrive at the conclusion to hold that
the case of the prosecution has been proved beyond all reasonable doubts
against the accused and would convict and sentence both the accused to undergo
the punishment mentioned supra.
39. While such being the fact, on the part of the

appellants it would be alleged that the evidence of P.Ws. 1 to 5 are not
inspiring confidence and the evidence of P.W.7 could not be considered as an
independent witness and the evidence of P.W.6 also does not corroborate the
evidence of the Official Witness and therefore, there is every chance of
foisting the case against the appellants.
40. Whether the instances broughtforth on the part of the

appellants discrediting the evidence of P.Ws. are to the effect of the

compliance of the mandatory or directory provisions of law do not in any
manner go to show that there has been any serious irregularity committed on
the part of the prosecuting Officials and that it could not also be said that
the case of the prosecution is absolutely without independent corroboration of
evidence, since P.W.7, through out the raid with the Official Witnesses P.Ws.
1 to 5 has been watching and witnessing all the events regarding the approach,
seizure of the contraband recording of the confession of the accused and
causing of the arrest of the accused including the preparation of Ex.P.2
Mahazar as it comes to be known from his evidence and therefore, the
irregularities, inconsistencies or improbabilities brought forth on the part
of the appellants could only be treated as negligible in extent and the same
could only be ignored and in no manner these minor defects could be taken to
have affected the case of the prosecution. Even regarding the compliance of
the mandatory and directory provisions of law say, under Sections 50, 52,
52(A), 55 and 57 of the Act, all these compliances have been taken care of
utmost by the prosecuting Officials and no major inconsistency or irregularity
or violation seems to have occurred regarding the compliance of these
provisions of law, whether mandatory or directory in nature.
41. Even the trial Court has conducted the trial, giving
all opportunities for the accused to be heard and it should be mentioned that
the case as broughtforth before this Court on Appeal by the defence on behalf
of the appellants, have no such grievances to be made before the trial Court
since affording with such opportunity for the prosecution to take stock of the
situation and shape their case, the trial has been held by the lower Court and
these matters which have been brought anew have not been brought forth even
during questioning under Section 313 Cr.P.C. and hence, it could be safely
concluded that the prosecution has put up a uniform case and has proved the
same to the standard of proof required by law beyond all reasonable doubts and
the trial Court in appreciation of the evidence in the manner required by law
has validly arrived at the conclusion to hold that the prosecution has clearly
brought home the guilt of the accused and awarding the punishment prescribed
by law in the manner that it has done and therefore, whether it is the
conclusion that is arrived at by the lower Court or the manner in which the
said conclusion has been arrived at do not require the interference of this
Court to be made in any manner. Since the judgment of the trial Court, which
is under challenge is a well considered and merited one, the interference
sought to be made on the part of the appellants into the same is neither
necessary nor required in the circumstances of the case and in these
circumstances, the only course open for this Court is to confirm the judgment
of the trial Court and hence, the following judgment:
In result,
i.the above Criminal Appeal is without merit and the same is dismissed as
such;

ii.the judgment dated 3-10-1996 made in C.C.No. 169 of 1994 by the Court of
Special Judge for N.D.P.S. Act Cases, Madras, thereby convicting and
sentencing both the appellants in the manner extracted supra and delivered by
the trial Court is confirmed.
iii. However, since the default sentence passed by the lower Court for
nonpayment of fine amount is on the higher side, the same is reduced to the
period of one month. Therefore, the judgment of the lower Court shall be read
as "both the accused are found guilty for the offences respectively punishable
under Sections 29 & 21 of the N.D.P.S. Act and they are sentenced to undergo
R.I. for a period of ten years and to pay a fine of Rs.1 lakh, in default to
undergo further R.I. for a period of one month each.
paa
Index: Yes
Internet: Yes
To
1. The Intelligence Officer,

Narcotic Control Bureau,
South Zone, T.Nagar, Madras.
2. The Special Judge for NDPS Act Cases, Madras.
3. The Special Public Prosecutor, High Court, Madras.

DATED: 18/03/2003
CORAM
THE HONOURABLE MR. JUSTICE K. SAMPATH
W.P.No. 4511 of 2003
Prabakaran .. Petitioner
rep by his maternal aunt Nagammal.
-Vs-
1. State of Tamilnadu
rep by its Secretary to Government
Home Department
Fort St. George
Chennai 9.
2. The Deputy Superintendent of Police

'Q' Branch C.I.D.,
Coimbatore.
3. The Inspector of Police

Uthangarai Police Station
Dharmapuri District. .. Respondents
!For Petitioner .. Mr. K. Chandru, S.C.
^For Respondents .. Mr. I. Subramaniam, P.P.
Writ petition filed under Article 226 of the Constitution of

India praying for issuance of a Writ of Prohibition as stated therein.
:O R D E R
Mr. I. Subramaniam, State Public Prosecutor, took notice for

the respondents.
2. By consent, the main writ petition itself was taken up.

3. The prayer is for a writ, prohibiting the Special Court,

Poonamallee, Chennai 56, for trial of cases under the Prevention of Terrorism
Act (hereinafter referred to as 'POTA'), from proceeding with the enquiry with
regard to Crl.M.P.No.17 of 2003 in Crime No.1004 of 200 2 of Uthangarai Police
Station, and all future proceedings in so far as the petitioner is concerned.
4. The petitioner is stated to be a minor aged 15+ years and

represented by his maternal aunt Nagammal. The circumstances, leading to the
proceedings as set out in the affidavit in support of the writ petition, are
as follows: The petitioner was arrested on 24.1.2002 and a case
was registered in Cr.No.1004 of 2002, on the file of the Inspector of Police,
Uthangarai Police Station, Dharmapuri District, for the alleged offences under
Sections 120(B) r/w. 9(B)(1)(b) of the Indian Explosives Act, Sec. 25(1)(a)
of the Indian Arms Act, and Sections 4 and 5 of the Explosive Substances Act.
The date of birth of the petitioner, as per the School Transfer Certificate,
is 11.5.1987. At the time of arrest, he was studying in standard 'X'. On
23.11.2002 and 24.11.2002, the Special Task Force and 'Q' Branch CID made a
joint combing operation to nab naxalites in Dharmapuri District. In
connection with the same, they entered the petitioner's house in search of his
father. As his father was not available, they arrested the petitioner, who
was sitting in the house, and foisted a case against him. They produced the
petitioner before the Judicial Magistrate, Uthangarai on 25.11.2002 . The
Magistrate, without enquiring whether he was a juvenile or not, mechanically
remanded him to judicial custody. The petitioner was placed along with other
alleged naxalite prisoners. A bail petition was moved before the Sessions
Judge, Krishnagiri, in Crl.M.P.No.68 of 2002. Regarding his age, the
petitioner was subjected to Radiological Examination. His original School
Transfer Certificate was also produced. The learned Principal Sessions Judge
granted bail observing that the School Certificate would prevail over the
results of the Radiological Examination. The petitioner could not be
entrusted to custody with his mother for various reasons. An application
praying for modification was moved on 7.2.2003 before the Sessions Court to
entrust the petitioner to the custody of his maternal aunt. The learned
Sessions Judge granted the prayer. While the maternal aunt was taking steps
to execute the surety bonds, a petition for cancellation of bail was filed
before the POTA Special Court, Poonamallee, and notice, dt.10.2.2003
intimating the production of the petitioner on 14.2.2003 was served directly
on one of the counsel for the petitioner on 11.2.2 003. An order passed by
the Special Court, Poonamallee requiring the production of the juvenile
petitioner on 19.2.2003 was also enclosed. The POTA Special Court does not
have jurisdiction to try a juvenile, when there is an Act, viz. Juvenile
Justice (Care and Protection) Act, 2000 (hereinafter referred to as the JJ
(C&PC) Act) to deal with juveniles. The provisions of the JJ (C&PC) Act deal
with what is to be done with regard to juvenile when arrested. The
petitioner, being a juvenile, should have been granted bail even at the time

of arrest on 24.11.2002 by the Inspector of Police, Uthangarai. If the

Officer had opined not to release the petitioner on bail, the petitioner,
being juvenile, should have been kept in an Observation Home and produced
before the Juvenile Justice Board (hereinafter referred to as 'the Board').
Till the filing of the writ petition, the petitioner was neither released on
bail nor produced before the Board. The Special Court has no jurisdiction to
try the juvenile, as there is a specific Act to deal with juveniles. The
Special Court had exercised 'excess of jurisdiction'. The Principal Sessions
Judge, Krishnagiri, after satisfying himself that the petitioner is a
juvenile, granted bail. The Special Court has no power to canc el or revise
the bail order, and further go into the question whether the petitioner is a
juvenile, which has already been determined by the Sessions Court. The
petitioner's initial remand on 25.11.2002 itself was illegal. Consequently,
his confinement, along with other alleged naxalites in Central Prison, Salem,
from 25.11.2002, is unlawful. The Special Court, ex facie, has no
jurisdiction to initiate any proceedings against the petitioner. In these
circumstances, the present petition has been filed.
5. During the course of hearing an additional affidavit has

been filed on behalf of the petitioner. Its contents are as under: After
the order, dt.7.2.2003 by the learned Sessions Judge, Krishnagiri, directing
the custody of the petitioner to be entrusted to the maternal aunt, the
petitioner's grand father one Raju and his uncle one Annamalai, both residents
of Gurugupatti Village, Krishnagiri Taluk, executed two bonds each for a sum
of Rs.5,000/- before the Judicial Magistrate, Uthangarai, on 10.2.2003. The
learned Magistrate accepted the sureties produced on behalf of the petitioner
and ordered his release from the Central Prison, Salem. The grandfather and
the deponent were waiting in front of the Central Prison, Salem on that date
till 6.00 p.m. Later, the Superintendent of Police, Central Prison, Salem,
informed that the petitioner could not be released in view of the Order,
dt.10.2.2003, of the Special court for trial of offences under POTA which
required the production of the petitioner before the Special Court on
14.2.2003 for the purpose of determining his age and for adjudication of
petition for cancellation of bail. The Special Court, by order dt.14.2.2003,
directed the petitioner to be kept in the Observation Home, Purasawalkam,
Poonamallee High Road, Chennai, the date fixed for the hearing being
20.2.2003. In spite of the fact that bail had been granted, the petitioner
has been detained in the Observation Home. The deponent is willing to take
care of the petitioner so as to enable him to pursue his studies. In these

circumstances, there must be a direction to the respondents to release the
petitioner.
6. Heard Mr. K. Chandru, learned Senior Counsel for the petitioner

and the State Public Prosecutor Mr. I. Subramaniam for the respondents.

7. The learned Senior Counsel for the petitioner submitted

that the Principal Sessions Judge, Krishnagiri, had satisfied himself that the
petitioner was a juvenile, and granted bail. As regards the age of the
petitioner, the School Certificate would prevail over the opinion expressed as
a result of Radiological Examination. In this connection, the learned Senior
Counsel relied on the judgment of the Supreme Court in BHOOP RAM vs STATE OF
U.P.[(1989) 3 SCC 1]. Counsel further submitted that JJ (C & PC) Act would
override POTA and that the proceedings in the present case under the latter
Act was absolutely without jurisdiction.
8. On the contrary, Mr. I.Subramaniam, learned Public Prosecutor,

submitted that POTA would prevail over the other Act, viz. JJ (C& PC)
Act, and at the time POTA was passed, the other Act had already been passed in
2000 and there was no provision exempting children or juvenile from being
proceeded against under POTA. The learned Public Prosecutor relied on the
provisions of POTA and in particular Section 56 containing non obstante clause
and some pronouncements of this Court and other Courts.
9. In the above factual background two questions pose

themselves? (1) Whether the petitioner is a juvenile in
conflict with law? Depending on the answer to this, the further question
(2) Which of the Acts, POTA or the JJ (C&PC) Act
will have to be invoked? Will have to be answered. (1) Whether the
petitioner is a juvenile in conflict with law? (i) A "juvenile" is
defined as a person who has not completed eighteenth year of age. "juvenile
in conflict with law" means a person who has not completed eighteen years of
age. Section 49 of the JJ (C&PC) Act provides that the order of a competent
authority regarding the age of a child or juvenile shall be deemed to be the
true age irrespective of any subsequent proof. (ii) In BHOLA BHAGAT
v.. STATE OF BIHAR [(1997) 8 SCC 720] the Supreme Court held as follows:
"When a plea is raised on behalf of an accused that he was a "child" within
the meaning of the definition of the expression under the Act, it becomes
obligatory for the court, in case it entertains any doubt about the age as
claimed by the accused, to hold an inquiry itself for determination of the
question of age of the accused or cause an enquiry to be held and seek a
report regarding the same, if necessary, by asking the parties to lead
evidence in that regard. Keeping in view the beneficial nature of the
socially-oriented legislation, it is an obligation of the court where such a
plea is raised to examine that plea with care and it cannot fold its hands and
without returning a positive finding regarding that plea, deny the benefit of
the provisions to an accused."
(iii) The learned Principal Sessions Judge relied on the

School Certificate and held that the petitioner was aged less than 16 years at
the time of his arrest. There was no doubt a Radiological examination done

which gave the age as 19 years. The question is which of the two is to be
preferred? (iv) In JAYAMALA v.. HOME SECRETARY, GOVERNMENT OF
JAMMU & KASHMIR & OTHERS (A.I.R. 1982 SC 1297), the detenu was detained on
18.10.198 1; the doctor conducted radiological test and gave his report. The
detenu claimed she was 17 years of age and therefore could not be detained.
Expressing its opinion on the evidentiary value of the doctor's evidence, the
Supreme Court observed "It is notorious and one can take judicial notice that
the margin of error in age ascertained by radiological examination is two
years on either side."
(v) In BHOOP RAM v.. STATE OF U.P. [(1989) 3 SCC 1] it has

been held that the date of birth in the school certificate showing accused
aged less than 16 years at the relevant time should be accepted in the absence
of anything showing that the entries in the Certificate did not relate to the
accused or were incorrect, and that it could not be rejected on the basis of
surmise that generally parents understated the age of their children at the
time of admission to school. The Supreme Court further held that there is
possibility of error existing in medical opinion regarding age which is based
on estimation of the doctor, and in the absence of any other independent
material, such medical opinion should not prevail over the entries in school
certificate. (vi) In SANTENU MITRA v.. STATE OF W.B. [1998 (5)
SCC 697] a three judges Bench of the Supreme Court accepted the entry in the
Register of Births and Deaths as genuine on the premise that once that entry
was recorded by an official in performance of his duties, it could not be
doubted. The Supreme Court further observed that it could not have been
expected on the date the entry was made that the appellant would claim benefit
thereof on the commission of some offence. There were, no doubt, other
documents in that case like LIC policy and matriculation certificate like wise
mentioning the date of birth in conformity with the birth certificate. (vii)
In MATADIN v.. STATE OF M.P. [1994 (3) CRIMES 510] the school certificate
prima facie showing the petitioner to be juvenile, was accepted.
(viii) In ARNIT DAS v.. STATE OF BIHAR [AIR 2000 SC 2264 : (20 00) 5 SCC 488
: 2000 Crl.LJ 2971] the Supreme Court on a review of judicial opinions held
that while dealing with the question of determination of the age of the
accused for the purpose of finding out whether he is a juvenile or not, a
hyper-technical approach should not be adopted while appreciating the evidence
adduced on behalf of the accused in support of the plea that he was a juvenile
and if two views may be possible on the said evidence, the Court should lean
in favour of holding the accused to be a juvenile in borderline cases. (ix)
In RAM DEO CHAUHAN @ RAJ NATH CHAUHAN v. STATE OF ASSAM [ AIR 2001 SC 2231 :
2001 (5) SCC 714] - as regards the determination of the age of the accused,
this is what the Supreme Court has said "The statement of the doctor
is no more than an opinion. The court has to base its conclusions upon all
the facts and circumstances disclosed on examining of the physical features of
the person whose age is in question, in conjunction with such oral testimony

as may be available. An X-ray ossification test may provide a surer basis for
determining the age of an individual than the opinion of a medical expert but
it can by no means be so infallible and accurate a test as to indicate the
exact date of birth of the person concerned. Too much of reliance cannot be
placed upon text books, on medical jurisprudence and toxicology while
determining the age of an accused. In this vast country with varied latitude,
heights, environment, vegetation and nutrition, the height and weight cannot
be expected to be uniform." Entry in the school register remains away from
the range of acceptability as proof positive regarding the date of birth of
the petitioner.
In that case it was not shown that the school register was maintained
by a public servant in the discharge of his official duty or by any other
person in the performance of a duty specially enjoined by the law of the
country in which such register is kept. (x) As pointed out by the
Supreme Court in ARNIT DAS's case (supra), there should not be any
hyper-technical approach and when two views of possible one should lean in
favour of holding the accused to be a juvenile. In CHANDRAN @ KUTTIPAYAN v..
STATE, REP. BY INSPECTOR OF POLICE [2003 (1) LW 131], a Division Bench of
this Court, after referring to the several authorities on this question, has
observed that "the law on the subject shows that if there is a doubt as
regards the age of the accused, the Court should lean in favour of the
accused". The facts in that case showed that the doctor was not definite
about the age of the accused since in cross examination he had admitted that
on the date of incident, the accused could have been running 16, which meant
that there was not conclusive evidence that on the date of occurrence he had
completed 16 years of age; the accused was questioned under Section 313
Cr.P.C. on 9.10.1998; he had given his age as 16 years on that day; if so, on
the date of occurrence he should have been less than 16 years of age. So
holding, the Bench applied the provisions of JJ Act, 1986 and released him.
(xi) It has to be held on the materials available that the

petitioner was a juvenile at the time of the alleged offence and continues to
be so.
The next question is which of the Acts will apply? (i) Both the Acts are
replete with non obstante clauses. (ii) In POTA some of the Sections
containing non obstante clause are Sections 14, 25, 30, 32, 33, 34,43, 45, 49,
51 & 51. So far as Section 14 is concerned, that relates to obligation
to furnish information. Section 14(3) provides that failure to furnish
information will be an offence and be tried as a summary case and the
procedure prescribed in Chapter XXI of the Code of Criminal Procedure [except
subsection (2) of Section 262] shall apply, and this is notwithstanding
anything contained in the Code. Section 25 provides for jurisdiction of
Special Courts. It states that notwithstanding anything contained in the
Code, every offence punishable under any provision of this Act (POTA) shall be

triable only by the Special Court. Section 30 gives protection to

witnesses and states that the proceedings under POTA may, for reasons to be
recorded in writing, be held in camera if the Special Court so desires.
Section 32 relates to confession made to Police Officers being taken to
consideration, that is notwithstanding anything in the Code or in the Evidence
Act, 1872, but subject to provisions of Section 32. Section 33 provides
for power to transfer cases to regular courts when the Special Court finds
that the offence is not triable by it. Section 34(1) provides for appeal from
the sentence or order not being an interlocutory order of a Special Court to
the High Court on facts and on law, and this is notwithstanding anything
contained in the Code. Section 34(4) provides for that notwithstanding
anything contained in sub-section (3) of section 378 of the Code, an appeal
shall lie to the High Court against an order of the Special Court granting or
refusing bail. Section 43 provides for interception of communication in
emergency. Section 45 provides for admissibility of evidence collected
through interception of communications. Section 49 relates to modified
application of certain provisions of the code, that is notwithstanding
anything contained in the Code or any other law. Section 49(5) provides
that nothing in Section 438 of the Code shall apply in relation to any case
involving the arrest of any person accused of having committed an offence
punishable under this Act. Section 49(6) states that notwithstanding
anything contained in the Code, no person accused of an offence punishable
under this Act shall, if in custody, be released on bail or on his own bond
unless the Court gives the Public Prosecutor an opportunity of being heard.
Section 49(9) deals with granting of bail to non-citizens. Section 51
deals with officers competent to investigate offences under this Act.
Section 56 is the most crucial Section for the purpose of our discussion and
it runs as follows: "The provisions of this Act shall have effect
notwithstanding anything inconsistent therewith contained in any enactment
other than this Act or in any instrument having effect by virtue of any
enactment other than this Act."
In JJ (C&PC) Act, Sections 3, 4, 6, 11, 12, 16, 17, 18, 22 &

28 contain non obstante clauses and will be referred to in more detail later
on.
(iii) It may be necessary to trace the origin of JJ (C&PC)

Act.
(iv) The Geneva Declaration of 1924 on the rights of the

child, was the first convention adopted by the League of nations in which
children's rights were considered. The U.N. General Assembly in 1948 while
adopting the universal declaration of human rights, incorporated certain basic
rights of children. However, it was in 1959 that for the first time, the U.N.
passed an independent "Declaration on the Rights of the Child". The U.N.
Declaration apart there are certain ( constitutional) safeguards in our

Constitution prohibiting abuse of children and protecting them from being

forced by economic necessity to enter avocations unsuited by virtue of
Constitution (42nd Amendment Act) 1976, which clearly provide that Children
are given opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity and that childhood and youth are protected
against exploitation and against moral and material abandonment. (v)
The international year of the child (1979) helped to draw the attention of the
people to the multifarious problems associated with exploitation of the rights

of the child. The U.N. Declaration on the rights of a child categorically
envisaged special protection of children against all forms of exploitation.
(vi) Article 25(2) of THE UNIVERSAL DECLARATION OF HUMAN

RIGHTS states that motherhood and childhood are entitled to special care and
assistance. All children, whether born in or out of wedlock, shall enjoy the
same social protection.
The Convention on the Rights of the Child provides for the following rights:
(i) the right to life and to protection from capital punishment; (ii) the
right to acquire a nationality; (iii) protection from separation from
parents;
(iv) the right to leave any country and enter his or her own country;
(v) the right to enter or leave another State Party for the purpose of
family reunification; (vi) protection from being illicitly taken abroad
and prevented from returning to his or her own country; (vii) protection of
the child's interests in adoption cases; (viii) freedom of thought,
conscience and religion; (ix) the right of access to
health-care services, with States aiming to reduce infant and
child mortality and abolish traditional practices prejudicial to
health; (x) the right to an adequate standard of living and social
security; (xi) the right to education, with States making primary
education compulsory and free;
(xii)protection from economic exploitation, with a minimum age for

admission to employment; (xiii)protection from involvement in the
illicit production, trafficking and use of narcotic drugs & psychotropic
substances; (xiv) protection from sexual exploitation and abuse.
(vii) International conventions and norms were read into

fundamental rights in the absence of domestic law occupying the field.
(viii) Even prior to the introduction of clause (e) in Article

39, every state except Nagaland had a Children's Act. But the Children' s
Acts were only in statute book and in some States they had not been brought
into force. In that context the Supreme Court in SHEELA BARSE v.. UNION OF

INDIA [AIR 1986 SC 1773 : (1986) 3 SCC 596] on 5.8.1986 observed "This piece
of legislation is for the fulfilment of a constitutional obligation and is a
beneficial statute. Obviously the State legislatures have enacted the law on
being satisfied that the same is necessary in the interest of the society,
particularly of children. There is hardly any justification for not enforcing
the statute. For instance, in the case of Orissa though the Act is of 1982,
for four years it has not been brought into force. Ordinarily it is a matter
for the State Government to decide as to when a particular statute should be
brought into force but in the present setting we think that it is appropriate
that without delay every State should ensure that the Act is brought into
force and administered in accordance with the provisions contained therein.
Such of the States where the Act exists but has not been brought into force
should indicate by filing a proper affidavit by August 31, 1986, as to why the
Act is not being brought into force in case by then the Act is still not in
force."
(ix) The need for a uniform legislation arose but then it

could not be done as the subject matter of such a legislation fell in the
State List of the Constitution.
(x) The UN Standard Minimum Rules, called Beijing Rules,

adopted by the General Assembly in 1985 vide Chapters 2 and 5 of Part-I
provide as under: "2. Scope of the Rules and definitions used 2.1
The following Standard Minimum Rules shall be applied to juvenile offenders
impartially, without distinction of any kind, for example as to race, colour,
sex, language, religion, political or other opinions, national or social
origin, property, birth or other status. 2.2 For purposes of these Rules, the
following definitions shall be applied by Member States in a manner which is
compatible with their respective legal systems and concepts:
(a) A juvenile is a child or young person who, under the

respective legal systems, may be dealt with for an offence in a manner which
is different from an adult. (b) An offence is any behaviour (act
or omission) that is punishable by law under the respective legal systems;
(c) A juvenile offender is a child or young person who is alleged to have
committed or who has been found to have committed an offence. 2.3
Efforts shall be made to establish, in each national jurisdiction, a set of
laws, rules and provisions specifically applicable to juvenile offenders and
institutions and bodies entrusted with the functions of the administration of
juvenile justice and designed: (a) to meet the varying needs of juvenile
offenders while protecting their basic rights; (b) to meet the needs of
society; and (c) to implement the following rules thoroughly and fairly.
xxx xxx xxx xxx xxx xxx 5. Aims of juvenile justice.
5.1 The juvenile justice system shall emphasize the well-being of the

juvenile and shall ensure that any reaction to juvenile offenders shall always
be in proportion to the circumstances of both the offenders and the offence."
(Source - Juvenile Justice Act by Asutosh Mookerjee Published by S. C.
Sarkar and Sons. Pp.20-21) [ARNIT DAS v.. STATE OF BIHAR, 2000 (5) SCC 488]
(xi) The Juvenile Justice Act, 1986 came to be passed
on 1.12.1986.
CONVENTION ON THE RIGHTS OF THE CHILD, NEW YORK, 20 NOVEMBER, 1989.

Objectives: The Convention is the principal children's treaty encompassing
a full range of civil, political, economic, social and cultural rights. The
Convention aims at protecting children from discrimination, neglect and abuse.
It grants and provides for the implementation of rights for children both in
times of peace and during armed conflict. The Convention constitutes a
rallying point and a useful tool for civil society and individuals, working
for the protection and promotion of the rights of the child. In many
respects, it is an innovative instrument.
RIGHTS OF THE CHILD Convention on the Rights of the Child came into force in
1990. The States Parties undertake to protect the child (defined as 'every
human being under 18 years of age unless, under the law applicable to the
child, majority is attained earlier') from all forms of discrimination and to
provide appropriate care. Rights to be ensured include: 1. The right to
life and to protection from capital punishment. 2. The right to acquire
a nationality. 3. Protection from separation from parents. 4. The right to
leave any country and enter his or her own country. 5. The right to
enter or leave another State party for the purpose of family
reunification. 6. Protection from being illicitly taken abroad and
prevented from returning to his or her own country. 7. Protection of the
child's interests in adoption cases. 8. Freedom of thought, conscience and
religion. 9. the right of access to health-care services, with States
aiming to reduce infant and child mortality and abolish traditional
practices prejudicial to health. 10. The right to an adequate standard
of living and social security. 11. The right to education, with States
making primary education compulsory and free. 12. Protection from economic
exploitation, with a minimum age for admission to employment. 13.
Protection from involvement in the illicit production, trafficking and
use of narcotic drugs and psychotropic substances. 14. Protection from
sexual exploitation and abuse.
(xii) The Delhi Juvenile Welfare Board challenged the 1986 Act
on the ground that it gave the police the power to send missing children to
the welfare homes, including those run by private organisations, without
producing them before the Board or searching for their parents, and in those
circumstances, there was every likelihood of the provisions of the Act being
exploited by certain unscrupulous organisations. A working committee reviewed
the 1986 Act. The review indicated that the justice system as available for

adults was not considered suitable for being applied to a juvenile or child.
Further the Act did not provide for differential approach to children in
conflict with law and those in need of care and protection. It was found
necessary that a uniform juvenile system should be available throughout the
country which should make adquate provision for dealing with all aspects in
the changing social, cultural and economic situation in the country, and for
larger involvement of informal systems and community based welfare agencies,
in the care, protection and treatment, development and rehabilitation of such
juveniles.
(xiv) The Statement of Objects and Reasons provided in the

Bill to re-enact the juvenile Justice Act, 1986 states to achieve the
following proposals: (i) to lay down the basic principles of
administering justice to a juvenile or the child in the Bill; (ii)
to make the juvenile justice system meant for a juvenile or the child more
appreciative of the developmental needs in comparison to criminal justice
system as applicable to adults; (iii) to bring the juvenile law in
conformity with the United nations Convention on the rights of the Child;
(iv) to prescribe a uniform age of eighteen years for both boys and girls;
(v) to ensure speedy disposal of cases by the authorities envisaged under this
Bill regarding juvenile or the child within a time limit of four months; (vi)
to spell out the role of the State as a facilitator rather than doer by
involving voluntary organizations and local bodies in the implementation of
the proposed legislation; (vii) to create special juvenile
police units with a humane approach through sensitisation and training of
police personnel; (viii) to enable increased accessibility to a
juvenile or the child by establishing Juvenile Justice Boards and Child
Welfare Committees and Homes in each district or group of districts; (ix)
to minimise the stigma and in keeping with the development needs of the
juvenile or the child, to separate the Bill into two parts - one for juveniles
in conflict with law and the other for the juvenile or the child in need of
care and protection; and (x) to provide for effective
provisions and various alternatives for rehabilitation and social
reintegration such as adoption, foster care, sponsorship and aftercare of
abandoned, destitute, neglected and delinquent juvenile and child.
10. Let us now refer to the provisions of the JJ (C&PC) Act,

2000. It is stated that the Act is to consolidate and amend the law relating
to juveniles in conflict with law and children in need of care and protection,
by providing for proper care, protection and treatment by catering to their
development needs, and by adopting a childfriendly approach in the
adjudication and disposition of matters in the best interest of children and
for their ultimate rehabilitation through various institutions established
under this enactment.

The preamble runs as follows: Whereas the Constitution has, in

several provisions, including clause (3) of Article 15, clauses (e) and (f) of
Article 39, Articles 45 and 47, imposed on the State a primary responsibility
of ensuring that all the needs, of children are met and that their basic human
rights are fully protected; And whereas, the General Assembly of the
United nations has adopted the Convention on the rights of the Child on the
20th November, 1989; And whereas, the Convention on the Rights of the Child
has prescribed a set of standards to be adhered to by all State parties in
securing the best interests of the child; And whereas, the Convention on
the rights of the Child emphasises social reintegration of child victims, to
the extent possible, without resorting to judicial proceedings; And whereas,
the government of India has ratified the Convention on the 11th December,
1992; And whereas, it is expedient to re-enact the existing law relating to
juveniles bearing in mind the standards prescribed in the Convention on the
Rights of the Child, the United Nations Standard Minimum rules for the
Administration of Juvenile Justice, 1985 (the Beijing Rules), the United
Nations rules for the Protection of juveniles Deprived of their Liberty
(1990), and all other relevant international instruments. The Act came
into force w.e.f. 1.4.2001 vide G.S.R.117(E), dt.28.2.2 001.
Section 2(c) says that the "Board" means a Juvenile Justice

Board constituted under Section 4. Section 2(g) defines
"competent authority", in relation to children in need of care and protection,
a Committee and in relation to juveniles in conflict with law a Board.
Section 2(j) defines "guardian", in relation to a child, means his natural
guardian or any other person having the actual charge or control over the
child and recognised by the competent authority as a guardian in course of
proceedings before that authority. Section 2(k) says that
"juvenile" or "child" means a person who has not completed eighteenth year of
age. Section 2(l) says that "juvenile in conflict with law" means a
juvenile who is alleged to have committed an offence. Section 2(p)
says that "offence" means an offence punishable under any law for the time
being in force. Section 2(q) says that "place of safety" means any
place or institution (not being a police lock-up or jail), the person
in-charge of which is willing temporarily to receive and take care of the
juvenile and which, in the opinion of the competent authority, may be a place
of safety for the juvenile. Section 2(v) defines "special home" as
an institution established by a State Government or by a voluntary
organisation and certified by that Government under Section 9.
Section 2(w) defines "special juvenile police unit" as a unit of the police
force of a State designated for handling of juveniles or children under
Section 63. Section 2(y) states that all words and expressions
used but not defined in the Act and defined in the Code of Criminal Procedure,
1973 (2 of 1974), shall have the meanings respectively assigned to them in

that Code.
Section 3 deals with non obstante clause and the terms are as
follows: "Continuation of inquiry in respect of juvenile who has ceased to be
a juvenile Where any inquiry has been initiated against a juvenile on
conflict with law or a child in need of care and protection and during the
course of such inquiry the juvenile or the child ceases to be such, then,
notwithstanding anything contained in this Act or in any other law for the
time being in force, the inquiry may be continued and orders may be made in
respect of such person as if such person had continued to be a juvenile or a
child."
Section 4 deals with Juvenile Justice Board and it runs as

follows: (1) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), the State Government may, by notification in the
Official Gazette, constitute for a district or a group of districts specified
in the notification, one or more Juvenile Justice Boards for exercising the
powers and discharging the duties conferred or imposed on such Boards in
relation to juveniles in conflict with law under this Act. (2) A Board
shall consist of a metropolitan Magistrate or a Judicial Magistrate of the
first class, as the case may be, and two social workers of whom at least one
shall be a woman, forming a bench and every such bench shall have the powers
conferred by the Code of Criminal Procedure, 1973 92 of 1974), or a
metropolitan Magistrate or, as the case maybe, a Judicial Magistrate of the
first class and the Magistrate on the Board shall be designated as the
principal Magistrate. (3) No Magistrate shall be appointed as a member of
the Board unless he has special knowledge or training in child psychology or
child welfare and no social worker shall be appointed as a member of the Board
unless he has been actively involved in health, education, or welfare
activities pertaining to children for at least seven years. (4) The term
of office of the members of the Board and the manner in which such member may
resign shall be such as may be prescribed. (5) The appointment of any
member of the Board may be terminated after holding inquiry, by the State
Government, if (i) he has been found guilty of misuse of power vested under
this Act, (ii) he has been convicted of an offence involving moral
turpitude, and such conviction has not been reversed or he has not been
granted full pardon in respect of such offence, (iii) he fails to attend the
proceedings of the Board for consecutive three months without any valid reason
or he fails to attend less than three-fourth of the sittings in a year.
It should be commented at this stage that according to Section 2(l) "Juvenile

in conflict with law" means a juvenile who is alleged to have committed an
offence. Section 4 deals with constitution of Juvenile Justice Boards,
notwithstanding any thing contained in the Code of Criminal Procedure, 1973.

The State Government may constitute such Boards for a district or a group of
districts specified in the notification for exercising the powers and
discharged the duties conferred or imposed on them. The Board consists of a
Metropolitan Magistrate or a Judicial Magistrate of the first class and two
social workers of whom at least one, a woman, forming a Bench. Such Bench
shall have the powers conferred by the Code of Criminal Procedure, 1973 on
Metropolitan or a Judicial Magistrate who would be designated as Principal
Magistrate. The prerequisites for a Principal Magistrate shall be special
knowledge in child psychology or child welfare and for a social worker, with
the seven years of active experience in health, education, or welfare
activities pertaining to children.
Section 5 deals with "Procedure, etc., in relation to Board".

It runs as follows: (1) The Board shall meet at such times and shall
observe such rules of procedure in regard to the transaction of business at
its meetings, as may be prescribed. (2) A child in conflict with law maybe
produced before an individual member of the Board, when the Board is not
sitting. (3) A Board may act notwithstanding the absence of any member
of the Board, and no order made by the Board shall be invalid by reason only
of the absence of any member during any stage of proceedings: PROVIDED that
there shall be at least two members including the principal magistrate present
at the time of final disposal of the case. (4) In the event of any
difference of opinion among the members of the Board in the interim or final
disposition, the opinion of the majority shall prevail but where there is no
such majority, the opinion of the principal Magistrate shall prevail.
Section 6 provides for "Powers of Juvenile Justice Board". It runs as

follows: (1) Where a Board has been constituted for any district or a
group of districts, such Board shall, notwithstanding anything contained in
any other law for the time being in force but save as otherwise expressly
provided in this Act, have power to deal exclusively with all proceedings
under this Act relating to juvenile in conflict with law. (2) The powers
conferred on the Board by or under this Act may also be exercised by the High
Court and the Court of Session, when the proceeding comes before them in
appeal, revision or otherwise.
Mr. Chandru, learned Senior Counsel, justifies the action

taken by the Principal Sessions Judge, Krishnagiri, in dealing with the matter
by referring to Section 6(2). The learned Senior Counsel particularly relies
on the word "otherwise". We will have occasion to consider that point later
on. Section 7 provides for "Procedure to be followed by a Magistrate not
empowered under the Act". It runs as follows: (1) When any Magistrate not
empowered to exercise the powers of a Board under this Act is of the opinion
that a person brought before him under any of the provisions of this Act
(other than for the purpose of giving evidence), is a juvenile or the child,
he shall without any delay record such opinion and forward the juvenile or the

child and the record of the proceeding to the competent authority having
jurisdiction over the proceeding. (2) The competent authority to which
the proceeding is forwarded under sub-section (1) shall hold the inquiry as if
the juvenile or the child had originally been brought before it. It is
the duty of such Magistrate to forward the juvenile or the child to the
competent authority. [MATADIN v.. STATE OF M.P., 1994 (3 ) CRIMES 510, ARNIT
DAS v.. STATE OF BIHAR, AIR 2000 SC 2264 : 200 1 (7) SCC 657].
Section 8 deals with Observation Homes. Section 9 deals with Special

Homes. Section 10 runs as follows: "Apprehension of juvenile in
conflict with law (1) As soon as a juvenile in conflict with law is
apprehended by police, he shall be placed under the charge of the special
juvenile police unit or the designated police officer who shall immediately
report the matter to a member of the Board. (2) The State Government may
make rules consistent with this Act, (i) to provide for persons through
whom (including registered voluntary organisations) any juvenile in conflict
with law may be produced before the Board; (ii) to provide the manner in
which such juvenile may be sent to an observation home. It requires that an
apprehended juvenile in conflict with law shall be notified to a member of the
Board and as per rules should be produced before the Board and sent to
observation home.
Section 11 deals with Control of custodian over juvenile. The

custodian shall be responsible for the juvenile maintenance. The juvenile
shall continue in his charge for the period stated by competent authority,
notwithstanding that he is claimed by his parents or any other person.
Section 12 deals with Bail of juvenile and it runs as follows: (1)

When any person accused of a bailable or non-bailable offence, and apparently
a juvenile, is arrested or detained or appears or is brought before a Board,
such person shall, notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974) or in any other law for the time being in force,
be released on bail with or without surety but he shall not be so released if
there appear reasonable grounds for believing that the release is likely to
bring him into association with any known criminal or expose him to moral,
physical or psychological danger or that his release would defeat the ends of
justice. (2) When such person having been arrested is not released on
bail under sub-section (1) by the officer incharge of the police station, such
officer shall cause him to be kept only in an observation home in the
prescribed manner until he can be brought before a Board. (3) When such
person is not released on bail under sub-section (1) by the Board it shall,
instead of committing him to prison, make an order sending him to an
observation home or a place of safety for such period during the pendency of
the inquiry regarding him as may be specified in the order. The non
obstante clause in Section (1) is significant.

It has been held in KAMIL v. STATE OF UTTAR PRADESH, 1994

Cri.LJ 1491, as follows: "A juvenile in conflict with law may be
released on bail with or without surety but such release shall not be possible
if there appear to be reasonable grounds for believing that such release is
likely to bring him into association with any known criminal or expose him to
moral, physical or psychological danger or his release would defeat the ends
of justice. Welfare of the juvenile or child is the need of the day and the
provisions contemplate a judicial officer with more sensitive approach
oriented out look."
Section 13 deals with information to parent, guardian or

probation officer. It runs as follows: Where a juvenile is arrested, the
officer incharge of the police station or the special juvenile police unit to
which the juvenile is brought shall, as soon as may be after the arrest,
inform (a) the parent or guardian of the juvenile, if he can be found of such
arrest and direct him to be present at the Board before which the juvenile
will appear; and (b) the probation officer of such arrest to enable him
to obtain information regarding the antecedents and family background of the
juvenile and other material circumstances likely to be of assistance to the
Board for making the inquiry.
Section 14 deals with inquiry by Board regarding juvenile.

The Board is to hold the inquiry in accordance with the provisions of the Act
and may make such order in relation to the juvenile as it deems fit. The
inquiry, under this Section, to be completed within a period of four months
from the date of its commencement, unless the period is extended by the Board
having regard to the circumstances of the case and in special cases after
recording the reasons in writing for such extension.
Section 15 deals with the order that may be passed regarding

juvenile. It runs as follows: "(1) Where a Board is satisfied on inquiry
that a juvenile has committed an offence, then, notwithstanding anything to
the contrary contained in any other law for the time being in force, the Board
may, if it thinks so fit, (a) allow the juvenile to go home after advice
or admonition following appropriate inquiry against and counselling to the
parent or the guardian and the juvenile; (b) direct the juvenile to
participate in group counselling and similar activities; (c) order the
juvenile to perform community service; (d) order the parent of the juvenile
or the juvenile himself to pay a fine, if he is over fourteen years of age and
earns money; (e) direct the juvenile to be released on probation of good
conduct and placed under the care of any parent, guardian or other fit person,
on such parent, guardian or other fit person executing a bond, with or without
surety, as the Board may require, for the good behaviour and well being of the
juvenile for any period not exceeding three years; (f) direct the
juvenile to be released on probation of good conduct and placed under the care

of any fit institution for the good behaviour and well-being of the juvenile
for any period not exceeding three years; (g) make an order directing
the juvenile to be sent to a special home, (i) in the case of
juvenile, over seventeen years but less than eighteen years of age for a
period of not less than two years; (ii) in case of any other
juvenile for the period until he ceases to be a juvenile: PROVIDED that
the Board may, if it is satisfied that having regard to the nature of the
offence and the circumstances of the case, it is expedient so to do, for
reasons to be recorded, reduce the period of stay to such period s it thinks
fit. (2) The Board shall obtain the social investigation report on juvenile
either through a probation officer or a recognised voluntary organisation or
otherwise, and shall take into consideration the findings of such report
before passing an order. (3) Where an order under clause (d), clause
(e) or clause (f) of sub-section (1) is made, the Board may, if it is of
opinion that in the interests of the juvenile and of the public, it is
expedient so to do, in addition make an order that the juvenile in conflict
with law shall remain under the supervision of a probation officer named in
the order during such period, not exceeding three years as may be specified
therein, and may in such supervision order impose such conditions as it deems
necessary for the due supervision of the juvenile in conflict with law:
PROVIDED that if at any time afterwards it appears to the Board on receiving a
report from the probation officer or otherwise, that the juvenile in conflict
with law has not been of good behaviour during the period of supervision or
that the fit institution under whose care the juvenile was placed is no longer
able or willing to ensure the good behaviour and well-being of the juvenile it
may, after making such inquiry as it deems fit, order the juvenile in conflict
with law to be sent to a special home. (4) The Board shall while making a
supervision order under subsection (3), explain to the juvenile and the
parent, guardian or other fit person or fit institution, as the case may be,
under whose care the juvenile has been placed, the terms and conditions of the
order and shall forthwith furnish one coy of the supervision order to the
juvenile, the parent, guardian or other fit person or fit institution, as the
case may be, the sureties, if any, and the probation officer."
Section 16 provides for order that may not be passed against

juvenile. It runs as follows: "(1) Notwithstanding anything to the contrary
contained in any other law for the time being in force, no juvenile in
conflict with law shall be sentenced to death or life imprisonment, or
committed to prison in default of payment of fine or in default of furnishing
security: PROVIDED that where a juvenile who has attained the age of
sixteen years has committed an offence and the Board is satisfied that the
offence committed is of so serious in nature or that his conduct and behaviour
have been such that it would not be in his interest or in the interest of
other juvenile in a special home to send him to such special home and that
none of the other measures provided under this Act is suitable or sufficient,

the Board may order the juvenile in conflict with law to be kept in such place
of safety and in such manner as it thinks fit and shall report the case for
the order of the State Government. (2) On receipt of a report from a
Board under sub-section (1), the State Government may make such arrangement in
respect of the juvenile as it deems proper and may order such juvenile to be
kept under protective custody at such place and on such conditions as it
thinks fit: PROVIDED that the period of detention so ordered shall not
exceed the maximum period of imprisonment to which the juvenile could have
been sentenced for the offence committed."
Section 17 provides that the proceeding under Chapter VIII of

the Code of Criminal Procedure is not competent against juvenile. No
proceeding shall be instituted and no order shall be passed against the
juvenile under the said Chapter.
Section 18 provides that there shall be no joint proceeding of

juvenile and person not a juvenile. This was held under the Bihar Children's
Act in KUMAR SATYANAND v. STATE OF BIHAR, 1983 CRI.LJ 1532.
Section 19 provides for removal of disqualification attaching

to conviction.
Section 20 provides for continuation of the proceedings

pending in any court in any area on the date on which this Act comes into
force in that area as if the Act had not been passed and if the court finds
that the juvenile has committed an offence, it shall record such finding and
instead of passing any sentence in respect of the juvenile, forward the
juvenile to the Board which shall pass orders in respect of that juvenile in
accordance with the provisions of this Act as if it had been satisfied on
inquiry under this Act that a juvenile has committed the offence.
Under Section 21 publication of name, etc., of juvenile

involved in any proceeding under the Act is prohibited. Any person
contravening the said mandate shall be punishable with fine, which may extend
to one thousand rupees. The idea in this Section is to provide for secrecy
regarding identification of a juvenile by barring publicity, except for
special reasons.
Section 22 provides for the procedure in respect of escaped

juvenile. It contains a non obstante clause.
Section 23 deals with punishment for cruelty to juvenile or

child
Section 24 relates to employment of juvenile or child for

begging.

Section 25 deals with penalty for giving intoxicating liquor

or narcotic drug or psychotropic substance to juvenile or child.
Section 26 deals with exploitation of juvenile or child

employee.
Section 27 provides for the offences punishable under Sections

23, 24, 25 and 26 shall be congnizable.
Section 28 states that where an act or omission constitute an

offence punishable under this Act and also under any other Central or State
Act, then, notwithstanding anything contained in any law for the time being in
force, the offender found guilty of such offences shall be liable to
punishment only under such Act as provides for punishment which is greater in
degree.
The offender in the context cannot refer to juvenile, but,

only to persons committing offence against the juvenile.
CHAPTER III consists of Sections 29 to 39 and deals with CHILD IN NEED OF CARE
AND PROTECTION. It is not necessary for us to deal with the same in the
present context.
CHAPTER IV deals with REHABILITTION AND SOCIAL REINTEGRATION. The relevant

sections are 40 to 45. Section 40 deals with the process of rehabilitation
and social reintegration.
Section 41 deals with adoption.
Section 42 deals with foster care.
Section 43 deals with sponsorship.
Section 44 deals with after-care organisation.
Section 45 provides for linkages and co-ordination between

various governmental, non-governmental, corporate and other community agencies
for facilitating the rehabilitation and social reintegration of the child.
CHAPTER V deals with MISCELLANEOUS matters. The relevant Sections are 46 to

70. Section 49, as already noted, provides that the order of a
competent authority regarding the age of a child or juvenile shall be deemed
to be the true age irrespective of any subsequent proof.
Section 52 provides for appeal to the Court of Sessions.
Section 53 provides for revision to the High Court. Section 64
provides as follows: Juvenile in conflict with law undergoing sentence at

commencement of this Act In any area in which this Act is brought into
force, the State Government or the local authority may direct that a juvenile
in conflict with law who is undergoing any sentence of imprisonment at the
commencement of this Act, shall, in lieu of undergoing such sentence, be sent
to a special home or be kept in fit institution in such manner as the State
government or the local authority thinks fit for the remainder of the period
of the sentence; and the provisions of this Act shall apply to the juvenile as
if he had been ordered by the Board to be sent to such special home or
institution or, as the case may be, ordered to be kept under protective care
under sub-section (2) of section 16 of this Act.
11. The highlights in a nutshell can be set out as follows:

(a) to make the juvenile justice system more effective and appreciative after
taking appropriate consideration of developmental needs of a child or a
juvenile in comparison to criminal justice system as applicable to adults;
(b) to prescribe a uniform age in respect of any person to be treated as
juvenile or the child if he has not attained the age of 18 years in the case
of a girl and also in the case of a boy; (c) to ensure speedy
disposal of cases as enshrined under Article 2 1 of the Constitution of India,
by the authorities as envisaged under the Act regarding the juvenile or the
child within a time limit of 4 months; (d) to spell out the role of
State as a facilitator rather than a doer by involving voluntary organisations
and local bodies in the implementation of the new legislation; (e)
provisions have been provided for fully ensuring the child or the juvenile in
need of care and protection and the juvenile in conflict with law to be
protected under the new Act; (f) to bring the juvenile law in
conformity with the convention of the United Nations on the Rights of the
Child under the Act; (g) to create special juvenile police units
with a humane approach through sensitisation and training of police personnel;
(h) to enable increased accessibility to a juvenile or child
by establishing Juvenile Justice Boards, Child Welfare committees and homes;
(i) to the juvenile justice system which has been made to provide for the
juvenile in conflict with law on one hand and the juvenile or child in need of
care and protection on the other hand; (j) for effective provisions
and various alternatives for rehabilitation and social reintegration of the
juvenile or the child, such as adoption, foster care sponsorship and aftercare
of abandoned, destitute and neglected or delinquent juvenile or child.
[Courtesy - The Juvenile Justice (Care and Protection of Children) Act, 2000
by K.S. VARMA]
12. It is now necessary to notice the historical background

and the salient features of the POTA.
Its earlier incarnation was the Terrorists and Disruptive

Activities (Prevention) Act, 1985 (TADA for short). It was passed in the year
1985 in order to prevent and control terrorists and disruptive activities. It

was thought that it would be possible to control the menace of terrorists

within two years. Therefore, the life of the statute was restricted to two
years. However, the object was not achieved. The terrorists activities
continued unabated. The life of the 1985 Act was due to expire on 23.5.87,
Ordinance 2/87 was promulgated by the President of India on 23.5.1987. It
came into effect from 24.5.87 . Though some provisions were suitably modified
in the ordinance, it was considered necessary to further strengthen the
provisions, and therefore the TADA Act came to be passed and its life though
initially was for four years, it was being extended from time to time. The
Act was a penal statute. Its provisions were drastic. The confessional
statements to a Police Officer, not below the rank of a Superintendent of
Police, were made admissible in evidence. Provision was also made in regard
to identification of an accused, who was traced through photographs. The
provisions were a departure from the ordinary law since the common law was
found to be inadequate and not sufficiently effective to deal with the special
class of offenders indulging in terrorist and disruptive activities. The Act
created a special forum for speedy disposal of such cases for raising
presumption of guilt, placed extra restrictions in regard to the release of
the offender on bail, and made suitable changes in the procedure with a view
to achieve its objects.
The President of India promulgated the Prevention of Terrorism

Ordinance, 2001, to make provisions for the prevention of and for dealing with
terrorist activities and the matter connected therewith. Since the Parliament
was not in session at that time and the President was satisfied that
circumstances existed which rendered it necessary for him to promulgate the
said Ordinance. However, the Prevention of Terrorism Bill to replace the said
Ordinance could not be passed in the Parliament during the subsequent session
because of attack on Parliament on 13th December, 2001 and subsequent
adjournment of the session. To give continued effect to the provisions of the
Prevention of Terrorism Ordinance, 2001, the President promulgated the
Prevention of Terrorism (Second) Ordinance, 2001 on 30th December, 2001. To
replace the said Ordinance with an Act of the Parliament, the Prevention of
Terrorism Bill was introduced in the Parliament and the same was passed at the
joint sitting of Parliament on 26th March, 2002, and was assented to by the
President on 28th March,2002. It came on the Statute book as "THE PREVENTION
OF TERRORISM ACT, 2002 (The POTA)". It places the onus of proving the
innocence on the accused, thereby presuming guilt. One of the salient
features of the Act is that confessions made to a police officer under certain
conditions are admissible, which is a deviation from current Indian law, which
allows confessions to be admitted as evidence only if they are repeated
voluntarily in the court. As per the Act, terrorism includes acts committed
with any lethal weapons. Under the Act, offences include inviting support for
a terrorist organisation, addressing a gathering of terrorism sympathizers and
assisting in arranging a meeting where support is expressed for a terrorist

organisation or its activities. Under the provisions of the Act, suspects can
be detained for three months without the charges being brought against them
and three more months if allowed by a special judge and a police officer can
ask the court to order samples of handwriting, fingerprints, footprints,
bloods saliva, semen and hair of a suspect. Refusal to give sample will be
considered against the accused in trial. The Act also provides some
safeguards in order to avoid its misuse. As per the Act, confessions made to
the police must be recorded within 48 hours before a magistrate, who will send
the accused for medical examination if there is a complaint of torture and
police officers can be prosecuted for abusing their authority and compensation
can be paid to the victims and a legal representative of the accused can be
present for part, but not all, of the interrogation. The provisions of the
Act extend to the whole of India. The provisions of the Act also apply to
citizens of India outside India, persons in the service of the government,
wherever they may be and persons on ships and air-craft registered in India,
wherever they may be. As per the provisions of this Act, any person who
commits an offence beyond India which is punishable under this Act shall be
dealt with according to the provisions of this Act in the same manner as if
such act had been committed in India. The properties of terrorist
organisation and their sympathisers can be seized even forfeited under the
provisions of this Act.
13. Before attempting to find a satisfactory answer to

Question No.2, it is necessary to have a look at what Courts have previously
done when similar conflicts arose in the particular context of Children' s
Acts and JJ Act, 1986.
JUVENILE JUSTICE ACT/CHILDREN's ACT vs.. CODE OF CRIMINAL PROCEDURE, 1973.
In RAGHBIR vs.. STATE OF HARYANA [AIR 1981 SC 2037 : 1981

(4) SCC 210 : 1981 Cri.L.J. 1497] the accused was less than 16 years and
thus a child within the meaning of S.2 (d) of the Haryana Children Act (14 of
1974) and he was accused of an offence under Section 302 Penal Code. He was
entitled to the benefit of the Haryana Children Act. It was held that the
trial and the conviction under the Cr. P.C. was illegal. In that case
Haryana Children Act came into force on March 1, 1974 while the Criminal P.C.,
1973 came into force on April 1, 1974. If there be any conflict between any
provisions of the Act and the Code, in view of Article 254(1) of the
Constitution, the provision of the Act repugnant to any provision of the Code
will be void to the extent of repugnancy. The Supreme Court observed as
follows: "The purpose of the Haryana Legislature as well as of
the Parliament in enacting the Haryana Children Act and the Central Children
Act respectively was to give separate treatment to delinquent children in
trial, conviction and punishment for offences including offences punishable

with death or imprisonment for life. Section 27 of the Criminal P.C. is not
'a specific provision to the contrary' within the meaning of Section 5 of the
Code; the intention of the Parliament was not to exclude the trial of
delinquent children for offences punishable with death or imprisonment for
life, inasmuch as S.27 does not contain any expression to the effect
"notwithstanding anything contained in any Children Act passed by any State
Legislature". Parliament certainly was not unaware of the existence of the
Haryana Children Act coming into force a month earlier or the Central Children
Act coming into force nearly fourteen years earlier. What S.27 contemplates
is that a child under the age of 16 years may be tried by a Chief Judicial
Magistrate or any Court specially empowered under the Children Act, 1 960. It
is an enabling provision, and, has not affected the Haryana Children Act in
the trial of delinquent children for offences punishable with death or
imprisonment for life. Criminal Procedure appears in Item 2 of the Concurrent
List of the Seventh Schedule of the Constitution. One of the circumstances
under which repugnancy between the law made by the State and the law made by
the Parliament may result is whether the provisions of a Central Act and a
State Act in the Concurrent List are fully inconsistent and are absolutely
irreconcilable. In the instant case it can be held that the relevant
provisions of the Code and the Act can co-exist. Their spheres of operation
are different." It was not as if the Parliament was not aware of the existence
of the Haryana Children Act coming into force a month earlier or the Central
Children Act coming into force nearly fourteen years earlier. What S.27 of
the Act contemplates is that a child under the age of 16 years may be tried by
a Chief Judicial magistrate or any Court specially empowered under the
Children Act, 1960. It is an enabling provision and has not affected the
Haryana Children Act in the trial of delinquent children for offences
punishable with death or imprisonment for life. If two enactments are capable
of co-existence, then Article 25 4 of the Constitution would not be attracted.
In DALJIT SINGH v.. STATE OF PUNJAB [1992 Crl.LJ 1051 : 1992

(2) CRIMES 142 : 1992(1) Cri.CC 516], it was held as follows: "
Definitions given in s.2(e)(h) and (n) (of JJ Act, 1986) make it clear that
when a juvenile has committed an offence (may be murder), he is called a
delinquent juvenile. Delinquent juvenile might have committed any heinous
crime, the matter can be inquired into and he can only be proceeded against
under the Act. The Act protects a juvenile from the ordinary law to the
extent that under S.3 of the act, when inquiry is taking place and he ceases
to be a juvenile, he shall still be continued to be treated as a juvenile.
Under S.5, a Juvenile Court is to be established by the State to exclusively
act and proceed under the Act, completely disregarding the provisions of the
Criminal P.C. Under S.7 it is said that notwithstanding anything provided in
any other law, Juvenile Court shall have exclusive power to conduct
proceedings against a Juvenile. Under S.18, a delinquent juvenile has to be
released on bail in spite of the fact of having committed heinous crime of

murder or rape. If he is not to be enlarged on bail, he is to be kept in safe

custody/place as ordered under the Act. Punishment of death or life
imprisonment has been statutorily prohibited against a delinquent juvenile
under S.22 of the Act. From a combined reading of all these Sections along
with other relevant provisions given in the Act, it is undoubtedly clear that
juvenile Justice Act, 1 986 is a complete Code in itself and has sweepingly
overriding effect on any other enactment of the State Legislature or
Parliament viz, the Criminal P.C. Regarding inquiry/proceedings or a trial
against a delinquent juvenile on any criminal charge."
JUVENILE JUSTICE ACT and NATIONAL SECURITY ACT, 1980. In PADMABATI

DEI v.. DISTRICT MAGISTRATE, CUTTACK [(1995) 3 CRIMES 156 (Ori)], the Orissa
High Court observed that Section 3 of the National Security Act, 1980, is the
substantive and enabling provision for passing detention order. It refers to
the terminology 'any person'. Section 2(d) defines the word 'person' which
includes a foreigner also. In the absence of any exception a juvenile would
be also a person within the meaning of National Security Act. Definition of
the term 'person' as contained in Section 3(42) of the general Clauses act
also does not support the case of the petitioner which defines the term
'person' as 'including any company or association or body of individuals
whether incorporated or not'. There is no justification whatsoever to
restrict the meaning of the term 'person' to a major or a non/juvenile. The
primary purpose and object of the National Security Act is to apprehend
certain variety of anti-social and subversive elements to insure that by their
activities larger interests of the citizens and society are not imperilled.
It is not meant to punish a man for having done something criminal in the
past. Keeping the above object of the National Security Act in view, there is
no reason to restrict its operation only to a major. Such an interpretation
has the potentiality of defeating the object of the national Security Act.
Therefore, any person, whether he is major or juvenile, would come within the
net of the National Security Act, once the subjective satisfaction about the
prejudicial activities referred to in Section 3, thereof is properly reached.
Section 18(1) of the Act mandates that when any person accused of a bailable
or non-bailable offence and apparently a juvenile is arrested or detained or
appears or is brought before the Court, such person shall be released on bail
(emphasis supplied) notwithstanding anything contained in the Cr PC or in any
other law for the time being in force. Therefore, the law is certain that a
juvenile or delinquent juvenile can never be remanded to custody much less
committed to prison even from the earliest stage. On the other hand, he
should be lodged in an observation home or place of safety pending further
proceedings against him. The Orissa High Court appears to have reasoned
that the word " detained" contained under Section 18 does not denote that the
word refers to detention under the preventive detention law. The word
"detain" has been not defined under the Juvenile law and word "detained" in
Section 18(1) cannot be read in isolation and will have to be read with

reference to the whole provision of the Act.
TAMIL NADU PEVENTION OF DANGEROUS ACTIVITIES OF BOOT-LEGGERS, DRUG

OFFENDERS,
FOREST OFFENDERS, GOONDAS, IMMORAL TRAFFIC OFFENDERS AND SLUM GRABBERS
ACT (14
OF 1982): In RAMACHANDRAN v.. THE INSPECTOR OF POLICE, MADRAS
[1994 CRI.L.J. 3722] it has been held by a Division bench of the Madras High
Court, as follows: " A child below 16 years cannot be termed as "goonda"
within definition of S.2(b) of Tamil Nadu Prevention of Dangerous Activities
of Boot-leggers, Drug offenders, Forest Offenders, Goondas, Immoral Traffic
Offenders and Slum Grabbers Act (14 of 1982) and therefore, his detention
under that Act would be unjustified. If a child, is detained as a goonda, he
is exposed to every such thing which Juvenile Justice Act (1986) says he
should not be exposed to. If he is branded as a goonda, in the sense that he
has habitually committed or attempted to commit or abetted the commission of
offences punishable under Chapter 16 or Chapter 17 or Chapter 22 of the Indian
Penal Code, a habit, he can form only if after the commission of the first
offence by him, he is not put to the care of a parent or home, as the Juvenile
Justice Act has contemplated to protect him from evils of the society. Since
a juvenile is always in a special custody and that custody is deliberately
chosen by the Juvenile Justice Act, it is difficult to think that his
delinquency will make him a habitual offender and a goonda in that sense.
However, when young children are found by the law enforcement Authorities to
be engaged in anti-social activities, it cannot be said that no action should
be taken against them. There should be more prompt action than in the case of
any adult offender, in the case of a juvenile. He should be taken to proper
custody but for the purposes under the Juvenile Justice Act, the detaining
Authorities - Authorities shall have the freedom to create a special home for
juvenile delinquents and juvenile delinquents can be detained in such homes.
...., in view of Ss.21, 22 and 25 of Juvenile Justice Act, there can be no
order, after conviction for any offence committed by a juvenile, to sentence
him death or to imprisonment. A Juvenile cannot be committed to prison in
default of payment of fine or in default of furnishing security. A juvenile
cannot be treated as a habitual offender and cannot be called upon to furnish
security for good behaviour under S.110 of the Criminal P.C. He cannot thus,
even for the purpose of security, be treated as a habitual offender. There is
a provision under S.22 of the Juvenile Justice Act that a child, who has
committed heinous offence of murder or rape or other serious offences, is
required to be kept in safe custody at a place ordered by the State
Government. This is a benefit intended for the children and they must receive
it. Hence, a minor, below the age of 16 years, at the time of the commission
of the antecedent offences, cannot be termed as a goonda, as defined under
S.2(f) of the Tamil Nadu act, and cannot be subjected to preventive detention
thereunder."

DECOITY AFFECTED AREAS ACT, 1983: In NANHU v.. STATE OF U.P. [1990
ALL.L.J. 496] the conflict between the two Acts - Juvenile Justice Act, 1986,
and Dacoity Affected Areas Act (31 of 1983) - was attempted to be resolved.
The juvenile in that case was aged about 10+ years. The Sessions Judge
rejected the bail on the ground that under S.10 of the Dacoity Affected Areas
Act the bail cannot be granted unless no offence is made out. The learned
Single Judge of the Allahabad High Court relied on Section 18 of the Juvenile
Justice Act, 1986 and held that the non obstante clause in the section would
override not only the provisions of Code of Criminal Procedure but also any
other law in force. The special law, namely, Juvenile Justice Act, 1986,
would prevail over the general law of S.10 of the Dacoity Affected Areas Act.
The only ground on which bail could be refused under S.18 of the Juvenile
Justice Act, 1986, being that the release was likely to bring the juvenile
into association with any known criminal or exposing him to moral danger or
that his release would defeat the ends of justice. In that case, no such
ground was made out.
N.D.P.S. Act, 1985: In ANTARYAMI PATRA v.. STATE OF ORISSA [1993 CRI LJ
1908], PATNAIK, J. (Orissa) (as the learned Judge then was) dealing with
provisions in Narcotic Drugs and Psychotropic Substances Act (61 of 1985) [
NDPS Act], vis-a-vis, JUVENILE JUSTICE ACT, 1986, held that a juvenile
delinquent being accused of commission of an offence under the former Act
cannot be released unless the pre-conditions contained in S.37 of the former
Act are complied with, that this would be the result in view of S.18 of the
Juvenile Justice Act, which provides that an accused shall not be released on
bail if there appears reasonable grounds for believing that the release is
likely to bring him into association with any known criminals or expose him to
moral danger or that his release would defeat the ends of justice, and that
what is to be noticed is that release of an accused involved in commission of
an offence under the Narcotic Drugs etc. Act would defeat the ends of the
justice and the drug traffickers would pursue their objective of drug
trafficking through such juvenile delinquents. The learned Judge further
observed as follows: "No doubt, S.18 of the Juvenile Justice Act
made a general provision with regard to the right of a Juvenile delinquent to
be released on bail irrespective of the offence committed by him, but the
Narcotic Drugs Act is a special provision and in that special statute a
further special provision has been made with regard to the pre-conditions to
be satisfied for an accused being released on bail. Therefore, the said
special provision of the special statute, namely S.37 of the Narcotic etc.
Act, would override S.18 of the Juvenile Justice Act and, therefore, even in
case of a juvenile delinquent involved in commission of an offence under the
said Act, no bail can be granted until and unless the provisions of S.37 of
the Narcotic etc. Act are complied with. No doubt, the Narcotic etc. Act
was enacted earlier in point of time than the Juvenile Justice Act, but the
special provision in relation to the bail by way of insertion of S.37 in the

Narcotic Act came on the statute book by Act 2 of 1989 and the Statement of
Objects and Reasons of the said amendment indicates that the Parliament
thought it appropriate to make stringent provision in respect of an accused
being released on bail to meet the challenge arising from drug trafficking."
Therefore, the said provision contained in S.37 of the Narcotic Drugs and
Psychotropic Substances Act would override the earlier general provision of
S.18 of the Juvenile Justice Act and consequently, a juvenile delinquent being
accused of commission of an offence under the former Act cannot be released
unless the pre-conditions contained in S.37 of the former Act are complied
with.
The learned Judge has referred to some of the decisions of the

Supreme Court and English Courts: In NARCOTICS CONTROL BUREAU
v.. KISHANLAL [AIR 1991 SC 558 : 1 991 Cri.L.J. 654] it has been held that
the provisions of S.37 with its non obstante clause should be given its due
meaning and it is intended to restrict the power to grant bail. The Supreme
Court went to the extent of observing that where there would be inconsistency
between S.439 of the Code of Criminal Procedure and S.37 of the NDPS Act, S.37
prevails and ultimately observed that the power to grant bail under any of the
provisions of the Criminal Procedure Code should necessarily be subject to the
conditions mentioned in S.37 of the NDPS Act and even the High Court's power
under S.439 of the Code of Criminal Procedure is also subject to S.37 of the
NDPS Act. While coming to such a conclusion, the learned Judges have borne in
mind the fact that the NDPS Act is a special enactment and was enacted with a
view to making a stringent provision for the control and regulation of
operations relating to narcotic drugs and psychotropic substances. The
learned Judge has however mentioned that in the case decided by the Supreme
Court, the question of a juvenile delinquent being involved in commission of
an offence under the NDPS Act and his rights to be dealt with under S.18 of
the Juvenile Justice Act had not come up for consideration. The learned
Judge also noticed that the NDPS Act is a penal statute and therefore has to
be construed strictly. He relied on the judgment of the Privy Council in THE
GAUNTLET, (1872) LR PC 184. The learned Judge further observed that when two
Acts are enacted in the same field, one dealing with general law and the other
dealing with the special law, then in case of inconsistency between the two,
the special law will prevail. When two enactments are passed one later than
the other, then it becomes a business for the Courts to consider the exact
effect of the latter enactment upon the earlier enactment to see whether they
can wholly or in part stand together. Where one statute enacts something in
general terms, and afterwards another statute is passed on the same subject,
which, although expressed in affirmative language, introduces special
conditions and restrictions, the subsequent statute will usually be considered
as repealing by implication the former, for affirmative statutes introductive
of a new law do imply a negative. The extent of which special Acts are
held to override the general law or create exception depends upon the terms of

the statute in question. This decision cannot be held to be good law

any longer because of the decision of the Supreme Court in RAJSINGH v.. STATE
OF HARYANA, 2000 (6) SCC 759. In the case before the Supreme Court the
appellant was born on 9.12.1974 as per certificate issued by the Board of
School Education which stood reaffirmed by another certificate produced before
the Court. The appellant was convicted for an alleged occurrence stated to
have taken place on 22.5.1990 when he was a juvenile. The conviction was
under Section 20 of NDPS Act. The Supreme Court held that the appellant was a
juvenile being less than 16 years of age at the time of the occurrence and
therefore trial should have been held by Juvenile Court. The appellant having
been tried by sessions Court, the Supreme Court set aside the conviction and
sentence imposed upon the appellant and directed that the appellant should be
dealt with in accordance with the provisions of the JJ Act.
MATADIN v.. STATE OF M.P. [1994(3) CRIMES 510] was a case

where bail application was filed by the petitioner claiming to be 15 years of
age. He had been arrested for cultivating cannabis plants. It was held that
the provisions of Juvenile Justice Act over rode the provisions of NDPS Act,
that irrespective of section 36A of NDPS Act, a juvenile has to be dealt with
under Juvenile Justice Act.
TADA ACT, 1987: SHRI JAGADISH BHUYAN v.. STATE OF ASSAM [1992
CRI.L.J. 3194] ( Gauhati) wherein it has been held that although, both the
Juvenile Justice Act 1986 - and TADA(P) Act are special Acts, S.25 of the
TADA(P) Act contains a non obstante clause with a view to give TADA(P) Act in
case of conflict, an overriding effect over the provisions in any enactment or
instrument mentioned in the non obstante clause. In the
reasoning of the Bench, under the TADA(P) Act the terrorism has been treated
as a special criminal problem, that the Act creates a new class of offences
called "Terrorist Act and Disruptive Activity" which are to be tried
exclusively by a special Court called Designated Court by providing special
procedure for trial of such offences, and that when the language of S.25 of
the TADA(P) Act is so clear, it could not be said that TADA(P) Act could not
overrode the Juvenile Justice Act (1986).
SCHEDULED CASTES & SCHEDULED TRIBES (PREVENTION OF ATROCITIES) ACT, 1 989: In

re: SESSIONS JUDGE, KALPETTA [1995 Cri.L.J.330] (Kerala) a Bench of the
Kerala High Court in dealing with an apparent conflict between the two Acts,
namely, Juvenile Justice Act, 1986 and Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989, as to which would prevail over the
other, held that the provisions of latter Act would have no over riding effect
over the provisions of 1986 Act, and that Juvenile offender should be dealt
with by Juvenile Court established under 1986 Act. That was a case where the
Juvenile aged below 15 years stood charged with offence punishable under
Sections 450, 376, and 506 (ii) of the Penal Code and also under Section 3(

i)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989. The Bench referred to the decision of the Orissa High
Court in ANTARYAMI PATRA v.. STATE OF ORISSA [1993 CRI LJ 1908] (already
referred to) and held in para 9 of its judgment, as follows: "The 1989 Act
was enacted to check and deter crimes against the members of the Scheduled
Caste and Scheduled Tribe communities committed by non-Scheduled Castes and
non-Scheduled Tribes. The provisions of the 1989 Act aim at giving protection
to the members of the Scheduled Caste and Scheduled Tribe communities against
whom atrocities are being committed. A reading of the provisions of 1989 Act
will show that the Act was concerned with the victims of the crimes. It is
not concerned with the offenders who perpetrate crimes against the members of
the Scheduled Castes and Scheduled Tribes. In order to protect the victims,
Section 20 was enacted, giving an overriding provision vis-a-vis the
provisions contained in all the existing enactments. That overriding power,
according to us, cannot be extended to nullify the provisions contained in the
1986 Act, which deals with juveniles who are offenders. The 1989 Act is not
concerned with the offenders. So it cannot have any impact on 1986 Act which
is concerned with juvenile offenders. The 1986 Act is a special enactment
which deals with juvenile offenders. The provisions of that Act cannot be
nullified by the 1989 Act which deals with an entirely different field. In
this view we hold that the 1989 Act cannot override the provisions of the 1986
Act which specifically deal with juvenile offenders." The Kerala Bench
ultimately held that the provisions contained in the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act will not have any over-riding
effect over the provisions contained in Juvenile Justice Act, 1986.
In GOPINATH GHOSH v.. STATE OF WEST BENGAL [AIR 1984 SC 237 :

19 84 (Supp) SCC 228] one Gopinath Ghosh was convicted by the Additional
Sessions Judge along with two others under Section 302 r/w Section 3 4 of the
Indian Penal Code for having committed murder of one Rabi Ghosh. It was
alleged that he had caused an injury with a fala which landed on the left side
chest below the neck of the deceased. It was urged before the Supreme Court
that on the date of the offence, i.e. on 19.8.1974, the appellant was aged
below 18 years and therefore a 'child' within the meaning of the expression in
the West Bengal Children Act, 1959, and therefore, the Court had no
jurisdiction to sentence him to suffer imprisonment after holding a trial.
The Supreme Court framed an issue for determination: What was the age of the
accused Gopinath Ghosh (appellant) on the date of the offence for which he was
tried and convicted? and remitted the issue to the Sessions Judge to certify
the finding after giving an opportunity to both sides. Liberty was also
reserved with the Sessions Judge to send accused Gopinath Ghosh to Chief
Medical Officer to ascertain the age. The Sessions Judge certified his
finding that the appellant was aged between 16 and 17 years on the date of the
offence. The West Bengal Children Act provided for a certain procedure in the
case of juvenile delinquent. Section 24 of the said Act starts with a non

obstante clause which takes away the jurisdiction of the court to impose a
sentence of death on a juvenile delinquent as well as the power to impose
sentence of imprisonment or commitment to prison in default of payment of fine
or in default of furnishing security on a juvenile delinquent. There is a
proviso to subclause (2) of Section 24 which would enable the court to impose
a sentence of imprisonment on a juvenile delinquent, if the conditions therein
prescribed are satisfied with an obligation on the court to report the case to
the State government and direct the juvenile delinquent to be detained in such
custody as it may think fit. Section 25 provides for inquiry by court
regarding juvenile delinquents. It reads as under: "Where a child having
been charged with an offence appears or is produced before a court, the court
shall hold the inquiry in accordance with the provisions in the Code of
Criminal Procedure, 1898, for the trial of a summons case. Section 26 confers
power on the court enabling it to pass orders regarding juvenile delinquents
as therein mentioned. Section 4 confers power on the State Government to
establish juvenile courts by a notification to be issued in that behalf.
Section 5 provides that the powers conferred on courts by the Act shall be
exercised amongst others where a juvenile court is not established by a Court
of Session. Section 6 provides that when a child is brought before a
magistrate or court not empowered to pass an order under the Act, such
Magistrate or court shall forward the child to the nearest juvenile court or
other court or Magistrate having jurisdiction. Thus, in the case before the
Supreme Court, the position was that where a juvenile delinquent was arrested,
he/she had to be produced before a juvenile court and if no juvenile court was
established for the area, amongst others, the Court of Session would have
powers of a juvenile court. Such a juvenile delinquent ordinarily had to be
released on bail irrespective of the nature of the offence alleged to have
been committed unless it was shown that there appears reasonable grounds for
believing that the release was likely to bring him under the influence of any
criminal or expose him to moral danger or defeat the ends of justice. Section
25 forbids any trial of a juvenile delinquent and only an inquiry could be
held in accordance with the provisions of the Code of Criminal Procedure for
the trial of a summons case and the bar of Section 24 which had been given an
overriding effect as it opened with the non obstante clause took away the
power of the Court to impose a sentence of imprisonment unless the case fell
under the proviso. The Supreme Court allowed the appeal, set aside the
sentence of conviction for an offence under Section 302 IPC, and remitted the
matter to the magistrate for disposal.
In KRISHNA BHAGWAN v.. STATE OF BIHAR [AIR 1989 PATNA 217] it

was held as follows: "The Juvenile Justice Act is a solemn promise by the
present to the future. Those who are charged with the statutory duty must not
fail. Obedience to law by all concerned alone shall ensure justice to
delinquent children. From bare reference to various provisions of the Bihar
Children Act (1982) and the Juvenile Justice Act (53 of 1986) it is apparent

that extraordinary procedure has been prescribed for enquiring the offence
alleged to have been committed by a child/juvenile and punishment hereof. The
basic approach appears to be curative instead of punitive. Even the Penal
Code, which was framed more than a century ago, had taken note of the age
factor in respect of persons committing offences which is evident from Ss.82
and 83 of the Penal Code. In olden days every home was a 'child care
home'. Every home protected their child, every child was cared for, looked
after, educated and made to live as a proud citizen of the country. Those
were the days now petrified in the myths, folklores and songs of the past.
When people started living low shrouded with mixture of ignorance, deprivation
and subjugation, every home suffered and children suffered most. Independent
India inherited with its glorious past liabilities of decades of servitude and
the responsibility to lit the dark abyss of future. And who represented the
future? Children who alone go into it, live smoothen and stream roll the
rough roads, through which the country has to march ahead." Even if the
charges against the children are established, a very liberal approach has been
provided in respect of punishment for such offences in the Juvenile Justice
Act. Different sections put a strict bar on the child/juvenile being sent to
jail custody either before an enquiry or after the conclusion of the enquiry
in respect of the offence alleged or proved to have been committed. Even if
such a child has committed a murder or a rape, in view of S.22, neither he can
be sentenced to death nor to imprisonment. It is true that in many cases the
offences committed by such delinquent children may be shocking to the
conscience and their conduct and behaviour may be abhoring but section 22 is
quite conscious of such situations. Still it provides for keeping the
delinquent child/juvenile accused of such serious offences, in safe custody at
a place ordered by the State government. This benefit has to be extended not
only to an accused who is a child/ juvenile at the time of the commencement of
the enquiry and has continued as such till the conclusion of the enquiry, but
even to an accused who has ceased to be a child/juvenile during the pendency
of the enquiry. The same view has been taken by a Full Bench of Calcutta High
Court in the case of DILIP SAHA v. STATE OF WEST BENGAL, AIR 1978 Cal 529.
"But, gradually with the sweeping social and economic changes together with
the rapid progress of sciences dealing with the social circumstances and
behaviour, punitive and deterrent criminal justice has been replaced by a
predominantly reformative approach to the offenders giving consideration to
their personal and social characteristics."
In ABDUL MANNAN v.. STATE OF WEST BENGAL [AIR 1996 SC 905 :

1996 (1) SCC 665] the appellants were charged for various offences including
the offence of murder punishable under Section 302, IPC. It transpired that
on the date of the commission of the offence these appellants were under the
age of 17 and 18 years. Since they were children under the provisions of the
West Bengal Children Act, 1959, they were required to be tried by the
Juveniles Court but no such Court had been constituted. Subsequently, pending

proceedings Juvenile Justice Act, 1986 came into force and the West Bengal Act
stood repealed. There was no Court constituted, with the result the Sessions
Judge had to conduct the trial. It was contended that the Additional Sessions
Judge was not a Sessions Judge, and therefore he could not proceed with the
trial. That was rejected and the appeal therefrom came to the Supreme Court
by Special Leave. Section 9(3) of the Code of Criminal Procedure, 1973,
provided that Additional Sessions Judges may be appointed by the High Court to
exercise jurisdiction in a Court of Sessions. It was held that Sessions Judge
would include Additional Sessions Judge under the Code, and that he had got
all the power and the jurisdiction of the Sessions Judge to try the offences
enumerated under the Code. It was also held that the Additional Sessions
Judge was competent to proceed with the trial of juvenile offenders, even
though at the relevant time the appellants were juveniles... The object of
the Juvenile Justice Act is to reform and rehabilitate the juvenile offenders
as useful citizens in the society.
In GANGULA ASHOK v.. STATE OF A.P. [AIR 2000 SC 740 : JT

2000(1) SC 379 : 2000 Crl.L.J. 819] sub-section (2) of Section 4 of the Code
of Criminal Procedure dealing with offences under other laws came up for
scrutiny. The said provision is as follows: "All offences under any other
law shall be investigated, inquired into, tried, and otherwise dealt with
according to the same provisions, but subject to any enactment for the time
being in force regulating the manner or place of investigating, inquiring
into, trying or otherwise dealing with such offences."
The Supreme Court observed that a reading of the sub-section made it

clear that subject to the provisions in other enactments all offences under
other laws should also be investigated, inquired into, tried and otherwise
dealt with under the provisions of the Code, that this meant that if other
enactment contained any provision which was contrary to the provisions of the
Code, such other provisions would apply in place of the particular provision
of the Code, and that if there was no such contrary provision in other laws,
then provisions of the code would apply to the matters covered thereby. The
Supreme Court referred to A.R. ANTULAY v. RAMDAS SRINIVAS NAYAK [1984(2) SCC
500] wherein it has been emphasised that the Code of Criminal Procedure is the
parent statute which provides for investigation, inquiring into and trial of
cases by criminal courts of various designations. The Supreme Court in STATE
OF WEST BENGAL v. NARAYAN K. PATODIA [AIR 2 000 SC 1405] has reiterated the
same principle.
We have already noticed that the Gauhati High Court has held
in JAGDISH BHUYAN'S case that TADA Act would prevail over JJ Act in view of
the overriding effect of its provisions contained in Sec.25. It runs as
follows:
"OVERRIDING EFFECT - The provisions of this Act or any rule made

thereunder or any order made under such rule shall have effect notwithstanding
anything inconsistent therewith contained in any enactment other than this Act
or in any instrument having effect by virtue of any enactment other than this
Act."
The corresponding provision in POTA is Section 56, which provides as

follows: "OVERRIDING EFFECT - The provisions of this Act shall have effect
notwithstanding anything inconsistent therewith contained in any enactment
other than this Act or in any instrument having effect by virtue of any
enactment other than this Act."
14. The non obstante clause in Section 16 of JJ (C&PC) Act

has already been extracted. Let us now examine the scope and effect of non
obstante clauses in statutes.
In UNION OF INDIA v.. G.M. KOIL [AIR 1984 SC 1022 : 1984

Supp. SCC 196 : 1984 (2) LLN 240] it has been held that a non obstante
clause is a legislative device which is usually employed to give overriding
effect to certain provisions over some contrary provisions that may be found
either in the same enactment or some other enactment, that is to say, to avoid
the operation and effect of all contrary provisions.
In CHANDAVARKAR SITA RATNA RAO v.. ASHALATA S. GURAM [(1986)

4 SCC 447] it was held as follows: "A clause beginning with the
expression "notwithstanding anything contained in this Act or in some
particular provision in the Act or in some particular Act or in any law for
the time being in force, or in any contract" is often appended to a section in
the beginning with a view to give the enacting part of the section in case of
conflict an overriding effect over the provision of the Act or the contract
mentioned in the non obstante clause. It is equivalent to saying that in
spite of the provision of the Act or any other Act mentioned in the non
obstante clause or any contract or document mentioned the enactment following
it will have its full operation or that the provisions embraced in the non
obstante clause or any contract or document mentioned the enactment following
it will have its full operation or that the provisions embraced in the non
obstante clause would not be an impediment for an operation of the enactment.
The expression ' notwithstanding' is in contradistinction to the phrase
'subject to', the latter conveying the idea of a provision yielding place to
another provision or other provisions to which it is made subject." Section
15-A of the Bombay Rent Control Act was introduced on February 1, 1973. The
effect of which was, if the licence had been created before that date, the
licensee must be deemed to be a tenant and he shall, subject to the provisions
of the said Act, be deemed to be a tenant of the landlord, on the terms and
conditions of the agreement consistent with the provisions of the Act.
Section 15-1 of the said Act provides as follows: "(1)
Notwithstanding anything contained in any law, but subject to any contract to

the contrary, it shall not be lawful after the coming into operation of this
Act for any tenant to sublet the whole or any part of the premises let to him
or to assign or transfer in any other manner his interest therein and after
the date of commencement of the Bombay Rents, Hotel and Lodging House Rates
Control (Amendment) Act, 1973, for any tenant to give on licence the whole or
part of such premises."
Section 15-A which was inserted by Section 14 of the amending Act of 1973
provides as follows: "15-A (1) Notwithstanding anything contained elsewhere
in this Act or anything contrary in any other law for the time being in force,
or in any contract, where any person is on the 1st day of February, 1973 in
occupation of any premises, or any part thereof which is not less than a room,
as a licensee, he shall on that date be deemed to have become, for the
purposes of this Act, the tenant of the landlord, in respect of the premises
or part thereof, in his occupation. (2) The provisions of sub-section (1)
shall not affect in any manner the operation of sub-section (1) of Section 15
after the date aforesaid." The question that fell for consideration in the
appeal before the Supreme Court was as to who was the licensee mentioned in
Section 15-A of the Act. What kind of licensee is contemplated by sub-section
(1); could a licensee of a statutory tenant whose contractual tenancy has come
to an end be contemplated under the provisions of that Act? The Full Bench of
the Bombay High Court held that a statutory tenant whose contractual tenancy
did not specifically authorise him to sublet or grant lease could not create a
licence which could be sought to be recognised by Section 15-A of the Act.
Was that view right, was the question before the Supreme Court. The Supreme
Court held that the statutory tenant was in the same position as a contractual
tenant until the decree for eviction was passed against him and the rights of
a contractual tenant included the right to create licence even if he was the
transferor of an interest which was not in fact the transfer of interest. "It
was canvassed before us that the non obstante clause was connected with the
verb i.e. that a licensee in Section 15-A of the Act on the date be deemed to
become tenant but it does not detract from the power of the tenant not to
create licence. The construction placed by the Full bench, in our opinion,
would curtail the language of the section and on the basis of the High Court's
judgment, the amendment ceased to be meaningful for a large section intended
to be protected and unless one was constrained by compulsion to give a
restricted meaning, one should not do it in that case. We find no such
compulsion."
15. In N.F. SALI v.. STATE OF KARNATAKA [AIR 1993 SC 1590 :

199 3 Supp. (2) SCC 399], where selection was made to certain posts as
provided under Rules of 1985 from Scheduled Castes and Scheduled Tribes
candidates, the Supreme Court held that "... it could not be set
aside on the ground of non observance of R.6(2) of 1973 Rules providing for

publication of list of marks obtained by candidates on notice board on the day

on which interview/viva voce held or on the day following but before the
commencement of such test because that rule is inconsistent with R.4(5)(b) of
1985 Rules providing that such publishing of list will be after the oral test
is over. The oral test and selection process under the Rules is a special
process; it is not confined to one post or one cadre or one group; whereas a
normal selection is confined to a particular post or a group of posts, as many
as 30 to 35 cadres are specified in the Schedule appended to the Rules. The
non obstante clause in Rule 3 of the Rules gives overriding effect to the
provisions of the rules and as such the provisions of the 1973 Rules - to the
extent of inconsistency - cannot be made applicable to the selection made
under the Rules."
16. In INDIAN BANK v.. USHA [(1998) 2 SCC 663] sub-section

14 of Section 45 of the relevant Act provided as follows: "The
provisions of this section and of any scheme made under it shall have effect
notwithstanding anything to the contrary contained in any other provisions of
this Act or in any other law or any agreement, award or other instrument for
the time being in force."
S.B. MAJMUDAR, J. observed that before the provision can apply, there must
be a provision on a given topic either in any of the other clauses of Section
45 or any scheme framed thereunder and such a provision must be contrary to
any other provision on the same topic as found in any other part of the Act or
in any other law or award or instrument for the time being in force. Thus on
the same topic there must be two contradictory provisions, one, on the one
hand in the Scheme or any part of Section 45 and second, on the other hand on
the same topic expressing an entirely different and contrary intention in any
other part of the Act or in any law or any other award or instrument for the
time being in force. The topic for consideration around which the controversy
revolves in the present cases is the question of providing compassionate
appointments to the eligible heirs of the deceased employees of
transferor-Bank who died in harness and who claimed such appointments under
the Settlement of 1982 from the transferee-Bank. On this topic or question
there must be an express provision in the Scheme or Section 45 of the Act and
such express provision should be contrary to and different from the provisio n
made on the same question and topic by any other part of the Act or in any
other law, agreement, award or instrument for the time being in force. The
topic for consideration in that case was the question of providing
compassionate appointments to the eligible heirs of the deceased employees of
transferor-Bank who died in harness and who claimed such appointments under
the Settlement of 1982 from the transferee-Bank. So far as this aspect is
concerned learned counsel for the Bank pitched their faith only on the second
part of clause 2 and clause 10 for submitting that there is such a contrary
provision in the Scheme which would govern the present controversy. The
Supreme Court held that the second part of clause 2 did not reflect such a

contrary provision. "If the Scheme deals with a topic and if it is

comprehensive enough then it would rule out any contrary provision found
elsewhere and express provision of the Scheme only has to be given effect to.
In the facts of the present case neither clause 2 nor clause 10 of the Scheme
represents any provision regarding compassionate appointments to be given to
the heirs of the erstwhile deceased employees of the transferor-Bank. The
entire Scheme is silent on this topic. It is obvious that a provision which
is silent on a topic cannot be said to have laid down any intention contrary
to the one as reflected by any other express provision contained in any other
instrument or agreement. Hence there is no occasion for the said clauses of
the Scheme to project any contrary express provision to override or to
supersede the provisions contained in 2(p) Settlement which was binding on the
transferor-Bank and which if binding on the transferee-bank would remain
operative to the extent benefit thereunder is available to the claimants
concerned like the respondents herein. In the light of the relevant clauses
of the Amalgamation Scheme, therefore, it is not possible to agree with the
contention that no liability could be imposed on the appellant-Bank so far as
the claim of the respondents for compassionate appointments was concerned."
17. It was held by the Supreme Court in SHIV BAHADUR SINGH

v.. STATE OF VINDHYA PRADESH [AIR 1953 SC 394] "The phrase "law in
force" as used in Art.20(1) must be understood in its natural sense as being
the law in fact in existence and in operation at the time of the commission of
the offence as distinct from the law "deemed" to have become operative by
virtue of the power of legislature to pass retrospective laws." In that case,
the Vindhya Pradesh Ordinance 48 of 1949 though enacted on 11.9.1949, i.e.
after the alleged offences were committed, was in terms made retrospective by
S.2 of the said Ordinance which says that the Act "shall be deemed to have
been in force in Vindhya Pradesh from the 8th day of August 1948", a date long
prior to the date of the commission of the offences. It was suggested that
since such a law at the time when it was passed was a valid law and since this
law had the effect of bringing this Ordinance into force from 9-8-1949 it
cannot be said that the convictions are not in respect of "a law in force" at
the time when the offences were committed. This, however, would be to import
a somewhat technical meaning into the phrase "law in force" as used in Art.20.
"Law in force" referred to therein must be taken to relate not to a law
"deemed" to be in force and thus brought into force but the law factually in
operation at the time or what may be called the then existing law. Otherwise,
it is clear that the whole purpose of Art.20 would be completely defeated in
its application even to 'ex post facto' laws passed after the Constitution.
Every such 'ex post facto' law can be made retrospective, as it must be, if it
is to regulate acts committed before the actual passing of the Act, and it can
well be urged that by such retrospective operation it becomes the law in force
at the time of the commencement of the Act. It is obvious that such a
construction which nullifies Art.20 cannot possibly be adopted.

18. In MUNICIPAL CORPN. OF DELHI v.. PREM CHAND GUPTA

[(2000) 10 SCC 115] the expression "for the time being in force" has been
interpreted to refer to the rules which were in force when the event took
place.
19. Both Acts, viz., JJ (C&PC) Act and POTA, as noticed

already have 'non obstante clauses' and undoubtedly they have overriding
effect. The question as to whether there is repugnancy between the two
enactments and if so which will prevail still remains unanswered.
20. The Supreme Court in M. KARUNANIDHI v.. UNION OF INDIA

[AIR 1979 SC 898] laid down the following propositions to determine the
question of repugnancy: (i) It must be shown that the two enactments contain
inconsistent and irreconcilable provisions, so that they cannot stand together
or operate in the same field. (ii) There can be no repeal by implication
unless the inconsistency appears on the face of the two statutes. (iii)
Where the two statutes occupy a particular field, but there is room or
possibility of both the statutes operating in the same field without coming
into collision with each other. (iv) Where there is no inconsistency but a
statute occupying the same field seeks to create distinct and separate
offences, no question of repugnancy arises and both the statutes continue to
operate in the same field.
21. It is now necessary to refer to a few more decisions in

this context: A Constitution Bench of the Supreme Court in MARU RAM
v.. UNION OF INDIA [(1981) 1 SCC 107 : 1981 SCC (Cri) 112 : 1981 (1) SCR
1196] held that Section 433-A CrPC overrides all other laws which reduce or
remit the term of life sentence and mandates that a minimum of 14 years of
actual imprisonment should be undergone by a convict where a sentence of life
is imposed for an offence for which death is one of the punishments provided
by law and remissions vest no right to release when sentence is for life
imprisonment. The Court also reiterated that imprisonment for life lasts
until the last breath and whatever be the length of remission earned, the
prisoner can claim release only if the remaining sentence is remitted by the
Government. The Court further negatived the contention that Section 5 of the
Criminal Procedure Code saves all remissions, short-sentencing schemes as
special and local laws and, therefore, they must prevail over the Code
including Section 433-A. For that purpose, Section 5 was referred to. In
that case the respondent was awarded life imprisonment and dismissed from
service by the General Court Martial after being tried for the offence under
Section 302 IPC and under Section 69 of the Army Act, 1950. He preferred a
writ petition in the High Court for his immediate release from imprisonment on

the ground that he had undergone imprisonment exceeding 14 years. The High
Court arrived at the conclusion that in view of the decision in AJIT KUMAR v..
UNION OF INDIA [1987 Supp SCC 493 : 1988 SCC (Cri) 101] the respondent would
be entitled to remissions earned in jail and thereby the respondent spent a
total period of 15 years 8 months and 29 days of imprisonment which obviously
exceeded 14 years. The Court, therefore, directed immediate release of the
respondent. That order was challenged in the appeal. It was pointed out by
the learned counsel for the appellant that the respondent had not undergone
actual imprisonment for 14 years. Before the High Court, it was admitted that
the respondent had spent 11 years and 1 month in actual custody, 1 year 7
months and 29 days in pre-trial custody and had earned 4 years' remission in
the jail. It was, therefore, submitted that the order passed by the High
Court, on the face of it, was against the provision of Section 433-A CrPC and
its interpretation given by this Court in the case of MARU RAM v.. UNION OF
INDIA (stated supra). The Supreme Court observed that "in the Army Act there
is no specific or contrary provision covering the same area. Section 433-a
CrPC is a special provision applicable to all the convicts who are undergoing
imprisonment for life as provided thereunder. For such convicts, it puts an
embargo for reduction of sentence below 14 years of actual imprisonment. We
would also mention that after the decision in AJIT KUMAR's case (stated supra)
the Army Act was amended (by Act 37 of 1 992) and Section 169-A was added,
which is similar to Section 428 of the Criminal Procedure Code."
22. In UNION OF INDIA v.. SADHA SINGH [(1999) 8 SCC 375] the
respondent before the Supreme Court was awarded life imprisonment and was
dismissed from service by the General Court Martial after being tried for the
offence under Section 302 IPC and under Section 69 of the Army Act, 1950.
Although he had remained in actual custody for less than 14 years, the High
Court, taking into consideration 4 years' remission earned by him in the jail,
held that his period of imprisonment exceeded 14 years and, therefore,
directed him to be released immediately. Allowing the Central Government's
appeal, the Supreme Court held: In the present case, the respondent was
convicted under Section 69 of the Army Act, 1950 for the offence of murder.
It is true that the Army Act is a special Act, inter alia, providing for
investigation, trial and punishment for the offences mentioned therein by a
special procedure. Section 177 empowers the Central Government to make rules
in respect of prisons and prisoners. Sections 179 to 190 provide for pardon,
remissions and suspension of the sentence. There is no specific provision
similar to Section 433-A CrPC or contrary to it. Hence, Section 433-A CrPC
would operate in the field and a prisoner who is undergoing sentence of
imprisonment for life and is convicted for an offence for which death is one
of the punishments provided by law or where a sentence of death imposed on a
person has been commuted under Section 433 CrPC to imprisonment for life, has
to serve at least 14 years of imprisonment excluding remissions earned in
jail. As the respondent has not completed 14 years of actual imprisonment,

the order passed by the High Court has to be quashed and set aside.
23. According to Mr. Chandru, learned Senior Counsel for the

petitioner, as laid down in USMANBAI DAWOOD BAI MEMO v.. STATE OF GUJARAT
[1988 (2) SCC 271] the source in respect of the two Acts, namely, JJ (C&PC)
Act, 2000, and POTA Act, is derived only from the Code of Criminal Procedure,
that they do not operate in the same field, and that there is no apparent
conflict and even if it is found that in respect of certain provisions there
is oppugnancy, when it comes to dealing with juvenile delinquent, the JJ(C&PC)
Act must be deemed to be a Special Act and POTA a general Act and the former
would prevail over the latter. In this connection counsel relied on the
following decisions LIC v.. DJ BAHADUR [1981 (1) SCC 315 : 1981 (1) LLJ 1 :
198 1 (1) SCR 1083 : AIR 1980 SC 2181] and ALLAHABAD BANK v.. CANARA BANK
[2000 (4) SCC 406 : AIR 2000 SC 1256].
24. In K.P.VARGHESE v.. INCOME TAX OFFICER, ERNAKULAM

[(1981) 4 SCC 173] HEYDON case [(1584) 3 Co Rep 7a] was relied on "
..... for the sure and true interpretation of all statutes in general ....
four things are to be discerned and considered: "(1) What was the common law
before the making of the Act, (2) What was the mischief and defect for which
the common law did not provide, (3) What remedy the Parliament hath resolved
and appointed to cure the disease of the Commonwealth, and (4) The true reason
of the remedy, and then the office of all the Judges is always to make such
construction as shall suppress the mischief, and advance the remedy." The
rule was re-affirmed by Earl of Halsbury in EASTMAN PHOTOGRAPHIC MATERIAL
COMPANY v.. COMPTROLLER GENERAL OF PATENTS, DESIGNS AND TRADE MARKS [1898
AC
571].
25. In THE UNION OF INDIA v.. INDIA FISHERIES PRIVATE LTD.

[AIR 1966 SC 35 : 1965 (3) SCR 679] it has been held that when there is an
apparent conflict between two independent provisions of law, the special
provision has to prevail. In that case it was held that Section 49E of the
Income Tax Act is a general provision applicable to all assessees and in all
circumstances. Sections 228 and 299 of the Companies Act deal with the proof
of debts and their payment in liquidation. Section 49E can be reconciled with
Ss.228 and 229 by holding that S.49E applies when insolvency rules do not
apply. The Supreme Court observed that on the face of Sec.49E, there is no
doubt that this Section is not subject to any other provision of law. But
this cannot be in a way to defeat the provisions of the Indian Companies Act.
The effect of these statutory provisions is, inter alia, that an unsecured
creditor must prove his debts and all unsecured debts are to be paid pari
passu. Once, therefore, the claim of the Department has to be proved and is
proved in the liquidation proceedings, the Department cannot by exercising the

right under S.49e of the Income Tax Act get priority over the other unsecured
creditors.
26. In LIC OF INDIA v.. BAHADUR [(1981) 1 SCC 315], relied

on by Mr.Chandru, the question that arose for consideration was whether the ID
Act is a general legislation pushed out of its province because of the LIC
Act, a special legislation in relation to the Corporation employees. The
Supreme Court after extracting the following passage from Craies on Statute
Law: " The general rule, that prior statutes are held to be repealed
by implication by subsequent statutes if the two are repugnant,is said not to
apply if the prior enactment is special and the subsequent enactment is
general, the rule of law being, as stated by Lord Selbourne in Sewards v.
Vera Cruz [(1884) 10 AC 59, 68], "that where there are general words in a
later Act capable of reasonable and sensible application without extending
them to subjects specially dealt with by earlier legislation, you are not to
hold that earlier and special legislation indirectly repealed, altered, or
derogated from merely by force of such general words, without any indication
of a particular intention to do so. There is a well-known rule which has
application to this case, which is that a subsequent general Act does not
affect a prior special Act by implication. That this is the law cannot be
doubted, and the cases on the subject will be found collected in the third
edition of Maxwell is generalia specialibus non derogant - i.e. general
provisions will not abrogate special provisions." When the legislature has
given its attention to a separate subject and made provision for it, the
presumption is that a subsequent general enactment is not intended to
interfere with the special provision unless it manifests that intention very
clearly. Each enactment must be construed in that respect according to its
own subject-matter and its own terms." observed as follows: "It is plain and
beyond dispute that so far as nationalisation of insurance business is
concerned, the LIC Act is a special legislation, but equally indubitably, is
the inference, from a bare perusal of the subject, scheme and sections and
understanding of the anatomy of the Act, that it has nothing to do with the
particular problem of disputes between employer and employees, or
investigation and adjudication of such disputes. It does not deal with
workmen and disputes between workmen and employers or with industrial
disputes. The Corporation has an army of employees who are not workmen at
all. For instance, the higher echelons and other types of employees do not
fall within the scope of workmen as defined in Section 2(s) of the ID Act.
Nor is the Corporation's main business investigation and adjudication of
labour disputes any more than a motor manufacturer's chief business is
spraying paints! In determining whether a statute is a special or a
general one, the focus must be on the principal subject-matter plus the
particular perspective. For certain purposes, an Act may be general and for
certain other purposes it may be special and we cannot blur distinction when
dealing with finer points of law.... The ID Act is a special statute devoted

wholly to investigation and settlement of industrial disputes which provides

definitionally for the nature of industrial disputes coming within its ambit.
It creates an infrastructure for investigation into, solution of and
adjudication upon industrial disputes. It also provides the necessary
machinery for enforcement of awards and settlements. From alpha to omega the
ID Act has one special mission - the resolution of industrial disputes through
specialised agencies according to specialised procedures and with special
reference to the weaker categories of employees coming within the definition
of workmen. Therefore, with reference to industrial disputes between
employers and workmen, the ID Act is a special statute, and the LIC Act does
not speak at all with specific reference to workmen. On the other hand, its
powers relate to the general aspects of nationalisation, of management when
private businesses are nationalised and a plurality of problems which,
incidentally, involve transfer of service of existing employees of insurers.
The workmen qua workmen and industrial disputes between workmen and the
employer as such, are beyond the orbit of and have no specific or special
place in the scheme of the LIC Act. And whenever there was a dispute between
workmen and management the ID Act mechanism was resorted to." The problem
before the Supreme Court arose because of an industrial dispute between the
Corporation and its workmen qua workmen, vis-avis 'industrial disputes' at the
termination of the settlement as between the workmen and he Corporation the ID
Act is a special legislation and the LIC Act is a general legislation.
Likewise, when compensation on nationalisation is the question, the LIC Act is
the special statute. An application of the generalia maxim as expounded by
English textbooks and decisions leaves us in no doubt that the ID Act being
special law, prevails over the LIC Act which is but general law. The
Supreme Court referred to its earlier decision in U.P. STATE ELECTRICITY
BOARD v. H.S. JAIN, (1979) 1 SCR 355 : (1979) 1 SCR 355, where the problem
was whether the standing orders under the Industrial Employment (Standing
Orders) Act, 1946, prevailed as against Regulations regarding the age of
super-annuation made by the Electricity Board under the specific power vested
by Section 79(c) of the Electricity (Supply) Act, 1948, which was contended to
be a special law as against the Industrial Employment (Standing Orders) Act.
The Supreme Court held "The maxim generalia specialibus non derogant is quite
well known. The rule flowing from the maxim has been explained in MARY SEWARD
v. THE OWNER OF THE "VERA CRUZ" (supra) as follows: "Now if anything be
certain it is this, that where there are general words in a later Act capable
of reasonable and sensible application without extending them to subjects
specially dealt with by earlier legislation, you are not to hold that earlier
and special legislation indirectly repealed, altered, or derogated from merely
by force of such general words, without any indication of a particular
intention to do so." The Supreme Court also referred to its still earlier
judgment in J. K. COTTON SPINNING & WEAVING MILS CO. LTD. v.. STATE OF
U.P. [AIR 1 961 SC 1170 : (1961) 3 SCR 185] " The rule that general
provisions should yield to specific provisions is not an arbitrary principle

made by lawyers and judges but springs from the common understanding of men
and women that when the same person gives two directions one covering a large
number of matters in general and another to only some of them his intention is
that these latter directions should prevail as regards these while as regards
all the rest the earlier direction should have effect. We have already shown
that the Industrial Employment (Standing Orders) Act is a special Act dealing
with a specific subject, namely with conditions of service, enumerated in the
Schedule, of workmen in industrial establishments. It is impossible to
conceive that Parliament sought to abrogate the provisions of the Industrial
Employment ( Standing Orders) Act embodying as they do hardwon and precious
rights of workmen and prescribing as they do an elaborate procedure, including
a quasi-judicial determination, by a general, incidental provision like
Section 79(c) of the Electricity (Supply) Act. It is obvious that Parliament
did not have before it the Standing Orders Act when it passed the Electricity
(Supply Act and Parliament never meant that the Standing Orders act should
stand pro tanto repealed by Section 79(c) of the electricity supply Act. We
are clearly of the view that the provisions of the Standing Orders Act must
prevail over Section 79(c) of the Electricity Supply Act, in regard to matters
to which the Standing Orders Act applies. What is special or general is
wholly a creature of the subject and context and may vary with situation,
circumstances and angle of vision. Law is no abstraction but realises itself
in the living setting of actualities. Which is a special provision and which
general, depends on the specific problem, the topic for decision, not the
broad rubric nor any rule of thumb. The peaceful coexistence of both
legislations is best achieved, if that be feasible, by allowing to each its
allotted field for play. Sense and sensibility, not mechanical rigidity gives
the flexible solution. It is difficult for me to think that when the entire
industrial field, even covering municipalities, universities, research
councils and the like, is regulated in the critical area of industrial
disputes by the ID Act, Parliament would have provided an oasis for the
Corporation where labour demands can be unilaterally ignored. The general
words in Sections 11 and 49 must be read contextually as not covering
industrial disputes between the workmen and the corporation. Lord Haldane
had, for instance, in WATNEY COMBE REID & CO. v. BERNERS, 1915 AC 885
observed that: " General words may in certain cases properly be
interpreted as having a meaning or scope other than the literal or usual
meaning. They maybe so interpreted where the scheme appearing from the
language of the legislature, read in its entirety, points to consistency as
requiring modification of what would be the meaning apart from any context, or
apart from the general law." To avoid absurdity and injustice by judicial
servitude to interpretative literality is a function of the court and this
leaves me no option but to hold that the ID Act holds where disputes erupt and
the LIC Act guides where other matters are concerned. In the field of
statutory interpretation there are no inflexible formulae or foolproof
mechanisms. The sense and sensibility, the setting and the scheme, the

perspective and the purpose - these help the judge navigate towards the
harbour of true intendment and meaning. The legal dynamics of social justice
also guide the court in statutes of the type we are interpreting. These
plural considerations lead me to the conclusion that the ID Act is a special
statute when industrial disputes, awards and settlements are the topic of
controversy, as here. There may be other matters where the LIC Act vis-a-vis
the other statutes will be a special law. I am not concerned with such
hypothetical situations now.
27. In ALLAHABAD BANK v.. CANARA BANK [(2000) 4 SCC 406 :

AIR 20 00 SC 1256] the Supreme Court has held as follows: "At
the same time, some High Courts have rightly held that the Companies Act is a
general Act and does not prevail under the RDB Act. They have relied upon
UNION OF INDIA v. INDIA FISHERIES (P) LTD. [ AIR 1966 SC 35 : (1965) 3 SCR
679]. There can be a situation in law where the same statute is treated as a
special statute vis-a-vis one legislation and again as a general statute
vis-a-vis yet another legislation. Such situations do arise as held in LIC OF
INDIA v.. D.J. BAHADUR [AIR 1980 SC 2181 : (1981) 1 SCC 315]. It was there
observed: "... for certain cases, an Act may be general and for certain
other purposes, it may be special and the court cannot blur a distinction when
dealing with the finer points of law". For example, a Rent Control Act may be
a special statute as compared to the Code of Civil Procedure. But vis-a-vis
an Act permitting eviction from public premises or some special class of
buildings, the Rent Control Act may be a general statute. In fact in DAMJI
VALJI SHAH v. LIC OF INDIA (already referred to), this Court has observed
that vis-a-vis the LIC Act, 1956, the Companies Act, 1956 can be treated as a
general statute. This is clear from para 19 of that judgment. It was
observed: "Further, the provisions of the special Act, i.e., the LIC Act,
will override the provisions of the general Act, viz., the Companies Act which
is an act relating to companies in general."
(emphasis supplied) Thus, some High Courts rightly treated the Companies Act
as a general statute, and the RDB Act as a special statute overriding the
general statute.
Alternatively, the Companies Act, 1956 and the RDB Act can both be
treated as special laws, and the principle that when there are two special
laws, the latter will normally prevail over the former if there is a provision
in the latter special Act giving it overriding effect, can also be applied.
Such a provision is there in the RDB Act, namely, Section 34. A similar
situation arose in MAHARASHTRA TUBES LTD. v. STATE INDUSTRIAL AND INVESTMENT
CORPORATION OF MAHARASHTRA LTD. [(1993) 2 SCC 144] where there was
inconsistency between two special laws, the Finance Corporation Act, 1951 and
the Sick Industries Companies (Special Provisions) Act, 1985. The latter
contained Section 3 2 which gave overriding effect to its provisions and was
held to prevail over the former. It was pointed out by Ahmadi, J. that both
special statutes contained non obstante clauses but that the "1985 Act

being a subsequent enactment, the non obstante clause therein would ordinarily
prevail over the non obstante clause in Section 46-B of the 1951 Act unless it
is found that the 1985 Act is a general statute and the 1951 Act is a special
one". (SCC p.157, para 9) Therefore, in view of Section 34 of the RDB Act,
the said Act overrides the Companies Act, to the extent there is anything
inconsistent between the Acts.
28. Rights of a child is an integral part of human rights, yet

protagonists of human rights hardly ever focus their attention to the
exploitation and abuse of the rights of a child. Human rights issues
basically revolve around excesses by Police or Security Agencies, wrongful
incarceration etc. The media also rarely highlights exploitation of
children's rights as attention of the media is dependent on reader's
acceptability and interest; highlighting of police excesses, custodial deaths
etc. has better reader response than a mere abuse of the rights of the child.
"My heart leaps up when I behold

A rainbow in the sky.
So was it when my life began
So it is now I am a man;
So be it when I grow old,
Or let me die.
The child is father of the Man
And I could wish my days to be
Bound each to each by natural piety."
(William Wordsworth)
"Every child comes with the message that

God is not yet discouraged of man."
(Rabindranath Tagore)
"In every child who is born, under no matter what circumstances, and
of no matter what parents, the potentiality of the human race is born again :
and in him, too, once more, and of each of us, our terrific responsibility
toward human life; toward the utmost idea of goodness, of the horror of terror
and of God." (James Agee)
"In praising or loving a child, we love and
praise not that which is but that which we hope for."
(Goethe)
No child is born a criminal : no child is born on angel :

he's just born' (Sir Sydney Smith) It sometimes happens that due to
compulsions economic or otherwise, the children swerve from the proper path
and get carried away. As far back as 1867, John Ruskin wrote: "I
hold it for indisputable, that the first duty of a State is to see
that every child born therein shall be well housed, clothed, fed and

educated till it attain years of discretion." (Time

and Tide by Weare and Tyne (1867) Letter 13)
29. Both Acts, viz., JJ (C&PC) Act and the POTA are special
Acts passed by the Parliament. Both contain a surfeit of non obstante clauses
having overriding effect. But then juveniles have been given a special place
in the scheme of things. Our country, as already noted, has been a party to
various international conventions and agreements and invoking Article 253 of
the Constitution enacted various Acts with children as the prime theme and
ensured that all their needs are met and their basic human rights are
protected. We have created greater responsibilities in ourselves when it
comes to juveniles in conflict with law. The various sections in JJ (C&PC)
Act already referred to vouch for the same. As pointed out in MUNNA v..
STATE OF UP [19 82 (1) SCC 545] "The law is very much concerned to see that
juveniles do not come into contact with hardened criminals and their chances
of reformation are not blighted by contact with criminal offenders. The law
throws a cloak of protection round juveniles and seeks to isolate them from
criminal offenders, because the emphasis placed by the law is not on
incarceration but on reformation. How anxious is the law to protect young
children from contamination with hardened criminals is also apparent from
Section 27 of the Act which provides, subject only to a few limited and
exceptional cases referred to in the proviso, that notwithstanding anything
contained to the contrary, no court can sentence a child to death or
transportation or imprisonment for any term or commit him to prison in default
of payment of fine. It would thus be seen that even where a child is
convicted of an offence, he is not to be sent to a prison but he may be
committed to an approved school under Section 29 or either discharged or
committed to suitable custody under Section 30. Even where a child is found
to have committed an offence of so serious a nature that the court is of
opinion that no punishment which under the provisions of the Act it is
authorised to inflict is sufficient, Section 32 provides that the offender
shall not be sent to jail but shall be kept in safe custody in such place or
manner as it thinks fit and shall report the case for the orders of the State
government. Section 33 sets out various methods of dealing with children
charged with offences. But in no case except the exceptional ones mentioned
in the act, a child can be sent to jail."
The above enunciation was made by the Supreme Court with reference to U.P.
Children Act, 1951, and at a time when even Central Act JJ act, 1986 had not
been enacted. It will apply with greater force in the present context. JJ
(C&PC) Act no doubt reached the statute book two years earlier to the POTA.
It is possible to argue that at the time POTA was passed Parliament was aware
of the presence of JJ (C&PC) Act as law, that still it chose to introduce
Sec.56 conferring overriding powers under POTA and that therefore POTA should
prevail. As pointed out in the LIC case as between ID Act and LIC Act, so far
as nationalisation and insurance business are concerned the latter Act is a

special legislation but when it comes to particular problem of disputes

between employer and employees, or investigation and adjudication of such
disputes it makes way to ID Act. By the same logic, JJ (C& PC) Act dealing as
it does with 'Alpha to Omega' of the problems facing juveniles and juveniles
in conflict with law providing as it does for specialised approach towards the
prevention and treatment of juvenile delinquency in its full range is a
special law and will prevail over POTA which is a mere special law compared to
JJ (C&PC) Act. JJ (C&PC) Act is the monarch of all that it surveys, in its
field. Both are special but JJ (C&PC) Act is more special (apologies to
George Orwell).
30. May be the offence committed by the juvenile is shocking

like murder or rape but as pointed out in KRISHNA BHAGWAN v.. STATE OF BIHAR
[AIR 1989 PATNA 217 (FB)] (though under the earlier Act), the appropriate
provision in the Act is quite conscious of such situations. Section 7 of JJ
(C&PC) Act enjoins the Magistrate, who is not empowered under the Act to
exercise the powers of the Board and before whom the juvenile or child is
brought, to forward the child to the competent authority. Section 12 provides
that if the release of the juvenile on bail is likely to bring him into
association with any known criminal or expose him to moral, physical or
psychological danger or his release would, defeat the ends of justice. If a
Board is satisfied that a juvenile has committed an offence it may allow the
juvenile to go home with an advice or admonition or direct him to participate
in group counselling; community service, etc.; direct him to be released on
probation as also order such directives as it may think fit. The Board may
also make the terms and conditions of supervision and furnish copy to the
juvenile, parent, guardian or other person or fit institution. Thus, welfare
of the juvenile is the prime concern of the law makers. The legislature had
intended that the juvenile should be extended special care, treatment,
development and rehabilitation. The Act overwhelmingly contemplates total
separation of juveniles from the mainstream offenders. Under no circumstance
should the juvenile have anything to do with them.
31. From the foregoing it follows that the POTA Court in the
present case has exceeded its jurisdiction and trespassed into another
territory and the mischief has to be undone. What the learned Sessions Judge,
Krishnagiri, has done is correct and that can be justified under Section 6 as
contended by Mr. Chandru. The Sessions Judge had exercised the powers
conferred on the Board when the proceeding came before him 'otherwise'.
32. The writ petition stands allowed. The petitioner shall

be proceeded against only under JJ (C&PC) Act. No costs. Consequently, WMP
Nos.5721 and 5722 are closed.
pb

To
1. State of Tamilnadu rep by its Secretary to Government Home Department
Fort St. George Chennai 9.
2. The Deputy Superintendent of Police 'Q' Branch C.I.D., Coimbatore.
3. The Inspector of Police Uthangarai Police Station Dharmapuri District.

Narcotic Cases - Madras High Court 2003

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Narcotic Cases - Madras High Court 2003

Uploaded by

Copyright:

Available Formats

http://www.judis.nic.in/chennaijudis/qrydisp.asp?

IN THE HIGH COURT OF JUDICATURE AT MADRAS

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

This criminal appeal is preferred under S.374 of The Code of Criminal

!For Appellant : Mr.T.Munirathinam Naidu

^For Respondent : Mr.O.Srinath,

http://www.judis.nic.in/chennaijudis/qrydisp.asp?tfnm=1894 (1 of 5)2/18/2004 5:56:46 AM

http://www.judis.nic.in/chennaijudis/qrydisp.asp?tfnm=1894 (2 of 5)2/18/2004 5:56:46 AM

http://www.judis.nic.in/chennaijudis/qrydisp.asp?tfnm=1894 (3 of 5)2/18/2004 5:56:46 AM

1) The Special District and Sessions Judge-NDPS, Madurai.

http://www.judis.nic.in/chennaijudis/qrydisp.asp?tfnm=1894 (4 of 5)2/18/2004 5:56:46 AM

4) The Public Prosecutor, High Court, Madras.

http://www.judis.nic.in/chennaijudis/qrydisp.asp?tfnm=1894 (5 of 5)2/18/2004 5:56:46 AM

IN THE HIGH COURT OF JUDICATURE AT MADRAS

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

C.A.No.212 of 2002 and C.A.No. 1271 of 2002

1. M.S. Faluluddeen @ Akeel

http://www.judis.nic.in/chennaijudis/qrydisp.asp?tfnm=1988 (1 of 10)2/18/2004 5:57:47 AM

For 1st Respondent

This judgment shall govern both the appeals.

http://www.judis.nic.in/chennaijudis/qrydisp.asp?tfnm=1988 (2 of 10)2/18/2004 5:57:47 AM

http://www.judis.nic.in/chennaijudis/qrydisp.asp?tfnm=1988 (3 of 10)2/18/2004 5:57:47 AM

http://www.judis.nic.in/chennaijudis/qrydisp.asp?tfnm=1988 (4 of 10)2/18/2004 5:57:47 AM

http://www.judis.nic.in/chennaijudis/qrydisp.asp?tfnm=1988 (5 of 10)2/18/2004 5:57:47 AM

http://www.judis.nic.in/chennaijudis/qrydisp.asp?tfnm=1988 (6 of 10)2/18/2004 5:57:47 AM

http://www.judis.nic.in/chennaijudis/qrydisp.asp?tfnm=1988 (7 of 10)2/18/2004 5:57:47 AM

http://www.judis.nic.in/chennaijudis/qrydisp.asp?tfnm=1988 (8 of 10)2/18/2004 5:57:47 AM

http://www.judis.nic.in/chennaijudis/qrydisp.asp?tfnm=1988 (9 of 10)2/18/2004 5:57:47 AM

http://www.judis.nic.in/chennaijudis/qrydisp.asp?tfnm=1988 (10 of 10)2/18/2004 5:57:47 AM

IN THE HIGH COURT OF JUDICATURE AT MADRAS

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

This criminal original petition is filed under Sec.37 of the Narcotic

For Petitioners : Mr.Kapil Sibal, Senior Counsel

For Respondent : Mr.I.Subramanian

An application for bail has been brought forth by these petitioners,

http://www.judis.nic.in/chennaijudis/qrydisp.asp?tfnm=3232 (1 of 11)2/18/2004 5:58:04 AM

http://www.judis.nic.in/chennaijudis/qrydisp.asp?tfnm=3232 (2 of 11)2/18/2004 5:58:04 AM

http://www.judis.nic.in/chennaijudis/qrydisp.asp?tfnm=3232 (3 of 11)2/18/2004 5:58:04 AM

8. The learned Senior Counsel in his further argument would submit

http://www.judis.nic.in/chennaijudis/qrydisp.asp?tfnm=3232 (4 of 11)2/18/2004 5:58:04 AM

confessional statement alleged to have been given either by the first

http://www.judis.nic.in/chennaijudis/qrydisp.asp?tfnm=3232 (5 of 11)2/18/2004 5:58:04 AM

http://www.judis.nic.in/chennaijudis/qrydisp.asp?tfnm=3232 (6 of 11)2/18/2004 5:58:04 AM

forward to state that the petitioners 1 and 2 were in possession of 35 kgs.

"37. Offences to be cognizable and non-bailable:-

http://www.judis.nic.in/chennaijudis/qrydisp.asp?tfnm=3232 (7 of 11)2/18/2004 5:58:04 AM

(III) In SUPDT., NARCOTICS CENTRAL BUREAU, CHENNAI VS. R.PAULSAMY (2

http://www.judis.nic.in/chennaijudis/qrydisp.asp?tfnm=3232 (8 of 11)2/18/2004 5:58:04 AM

http://www.judis.nic.in/chennaijudis/qrydisp.asp?tfnm=3232 (9 of 11)2/18/2004 5:58:04 AM

http://www.judis.nic.in/chennaijudis/qrydisp.asp?tfnm=3232 (10 of 11)2/18/2004 5:58:04 AM

Prison ( Women Cell), Trichy, immediately.

http://www.judis.nic.in/chennaijudis/qrydisp.asp?tfnm=3232 (11 of 11)2/18/2004 5:58:04 AM

IN THE HIGH COURT OF JUDICATURE AT MADRAS

THE HONOURABLE MR.JUSTICE M. CHOCKALINGAM

1. R. Paulsamy .. 1st Appellant in CA 868/00

2. Gladys Lilly .. 2nd Appellant in CA 868/00

These criminal appeals are preferred under Section 374 of Cr.P.C.

!For Appellants : Mr.B.Kumar, Senior Counsel

^For Respondent : Mr.P.N.Prakash

http://www.judis.nic.in/chennaijudis/qrydisp.asp?tfnm=1949 (1 of 41)2/18/2004 5:58:39 AM

http://www.judis.nic.in/chennaijudis/qrydisp.asp?tfnm=1949 (2 of 41)2/18/2004 5:58:39 AM

http://www.judis.nic.in/chennaijudis/qrydisp.asp?tfnm=1949 (3 of 41)2/18/2004 5:58:39 AM

for chemical analysis. The remaining M.Os.1, 3, 4, 6 and 9 were available in

http://www.judis.nic.in/chennaijudis/qrydisp.asp?tfnm=1949 (4 of 41)2/18/2004 5:58:39 AM