The Intelligence Officer, v. Selvi,

JUDGMENT The respondents 1 and 2/ accused 1 and 2 stood charged for the offences punishable under Sections 8(c) r/w. 20(b)(ii)(C) and 29 of NDPS Act, 1985, while the third respondent / fourth accused charged for the offences punishable under Section 8(c) r/w. 29 of NDPS Act, 1985.

¶2The learned Special Judge, II Additional Special Court under NDPS Act, Chennai, after full trial, convicted and sentenced the Accused 1 and 2, vide his judgment dated 28.02.2017, as detailed hereunder. Accused Conviction Sentence A1 Section 8(c) r/w. 20(b)(ii)(B)

of NDPS Act, Rigorous Imprisonment for five years and to pay a fine of Rs.25,000/-, in default, to undergo Rigorous imprisonment for six months

A2 Section 8(c) r/w. 20(b)(ii)(B)

of NDPS Act, Rigorous Imprisonment for five years and to pay a fine of Rs.25,000/-, in default, to undergo Rigorous imprisonment for six months Accused Conviction Sentence

The aforesaid sentences shall run concurrently. The period of sentence already undergone is set off under Section 428 Cr.P.C. Tmt.Rathi (A4), was acquitted of all the offences of which she was charged. Challenging the order of acquittal of the fourth accused and conviction of A1 and A2 for the offences punishable under Sections 8(c) r/w.20(b)(ii)(B) instead of 8(c) r/w.20(b)(ii)(C) of NDPS Act, the present appeal is filed by the State.

¶3The case of the prosecution as could be discerned from the oral and documentary evidence is as follows:

3.1. Thiru.S.Maharajan (P.W.9), the then Sub Inspector of Police, Railway Protection Force (RPF), on receipt of a complaint from general public that male members are also entering the ladies compartment of EMU train, was checking EMU along with Head Constable of Police, RPF, on 17.03.2012. At about 10.30 a.m., he found two ladies (A1 and A2) getting down from the first class compartment of the EMU train carrying bags with them. P.W.9 enquired them and they confessed that they are carrying Ganja. He immediately took them to Mambalam Out post RPF Police Station, Chennai and informed Narcotic Control Bureau (in short NCB) officials.

3.2. Thiru.K.R.Srikanth (P.W.3), the then Intelligence Officer, NCB, Chennai, on receipt of intimation from P.W.9, reduced it into writing and forwarded to Thiru.R.Rakesh Kumar (P.W.7), the then Superintendent of Police, NCB, Chennai.

3.3. A police team was formed and they went to Mambalam RPF Station and enquired A1 and A2. They explained to them about their right of search before a Magistrate or a Gazetted Officer as contemplated under Section 50 of NDPS Act and the accused gave their consent for searching by the NCB officials. Both the accused admitted that they are carrying Ganja with them and a search was conducted and 23 packets of Ganja in six bags were recovered under the cover of a mahazar (Ex.P9). A sample of 25 grams from each packet was taken out and they were marked as 'S' series (M.O.14 to M.O.25). The remaining Ganja were packed separately and were marked as 'P' series (M.O.1 to M.O.13).

3.4. Summons were issued to both the accused to appear before the NCB Officials and were arrested and remanded to judicial custody. In their statements, under Section 67 of NDPS Act, both A1 and A2 had confessed that they were travelling along with two other ladies by name Rani (A3) and Rathi (A4) and both of them on seeing the police personnel made good their escape from Mambalam Railway Station. They had also stated that they carried one bag of Ganja for handing over the same to one Varasanattu Deivam (A5) for a sum of Rs.1,000/-.

3.5. Rathi (A4) and Varasanattu Daivam (A5) were arrested subsequently by NCB Officials and were confined in Central Prison, Madurai.

3.6. After completing investigation, NCB Officials laid a final report before the Special Judge, II Additional Special Court under NDPS Act, Chennai in C.C.No.35/2012. Since A3 and A4 absconded their case was split up in C.C.No.63/2013. In the mean while, Varasanattu Daivam

(A5) died and the charges against her got abated. Subsequently, Rathi

(A4) was once again added in C.C.No.35/2012 as she was apprehended by police.

3.7. The learned trial court judge after analysing the evidence on record convicted the accused 1 and 2 for the offences punishable under Section 8(c) r/w.20(b)(ii)(B) of NDPS Act and sentenced them as stated in Paragraph No.2, vide his judgment and orders dated

28.02.2017. The fourth accused was acquitted of all charges.

¶4Heard Mr.N.P.Kumar, learned Special Public Prosecutor appearing for the State, Ms.S.Varshini, learned Legal Aid Counsel appearing for the respondents 1 and 2 and Ms.S.Vasavi Sridevi, learned Legal Aid Counsel appearing for the third respondent.

¶5Mr.N.P.Kumar, learned Special Public Prosecutor appearing for the State contended that though 61.300 kgs of Ganja were recovered from A1 and A2, the trial court has not convicted them for the offences punishable under Sections 8(c) r/w. 20(b)(ii)(C) of NDPS Act (commercial quantity). It is also his contention that when A1 and A2 were categorical in stating that A3 and A4 also accompanied them in EMU train on the date of their arrest and were carrying Ganja, the trial court was wrong in acquitting the fourth accused on the technical ground that the NCB Officials did not record her statement separately under Section 67 of NDPS Act. He therefore prayed for convicting all the three accused for the offences punishable under Section 8(c) r/w.20(b)(ii)(C) of NDPS Act.

¶6Per contra, Ms.S.Varshini, learned Legal Aid Counsel for the respondents 1 and 2 and Ms.S.Vasavi Sridevi, learned Legal Aid Counsel for the third respondent would contend that it was established that A1 and A2 were carrying only one bag each in their hands and therefore, they cannot be found guilty of carrying commercial quantity of Ganja. It is also her submission that both A1 and A2 had already undergone the sentence inflicted upon them by the trial court.

¶7It is seen from the records that the NCB Officials recorded 67 statements of A1 and A2 on the date of occurrence i.e. on 17.03.2012. which reads thus : "gpd;du; uhzp vdf;Fk; $hdfpf;Fk; xU of;fl; bfhLj;jhu;/ uhzp vd;dplj;jpy; kw;Wk; $hdfpaplKk; ,ts; 4 Bag kw;Wk; ,uz;L igfspy; f";rh th';fp itj;jpUg;gjhft[k;. MSf;F xU ngf; vLj;Jf; bfhz;L train-y; bgU';fsj;Jhu; brd;W midtUk; njdPf;F g!; K:yk; bry;yyhk; vd;W Twpdhu;/ mjd;go nkw;Twpa f";rhit njdPf;F flj;jpr; brd;W turehl;L bja;tj;jplk; xg;gilj;j gpd;g[ v';fSf;F U:gha; 1000 jUtjhf Twpdhu;/ mjd;go Rkhu; 10 kzpf;F ehd;. $hdfp. uhzp kw;Wk; ujp ehy;tUk; f";rh ,Uf;Fk; igfisa[k; kw;Wk; Jzpkzpfs; ml';fpa ,U igfisa[k; vLj;Jf; bfhz;L train-y; Vwpndhk;/ ,uapy; khk;gyk; ,uapy; epiyaj;jpy; epd;wbghGJ rpy egu;fs; eh';fs; mku;e;jpUf;Fk; bgl;o Kjy; tFg;g[ vd;gij Twp v';fis ,w';fp ,uz;lhk; tFg;g[ bgl;of;F bry;YkhW Twpdu;/ mijj; bjhlu;e;J eh';fs; khk;gyk; ,uapy;epiyaj;jpy; ,w';Fk;bghGJ rpy ,uapy;nt nghyPrhu; v';fis mZfp v';fisg; gw;wpa[k;. v';fsJ clikfs; gw;wpa[k; tprhupj;j bghGJ ehDk; kw;Wk; $hdfpa[k; v';fsJ bgau;fis bjuptpj;njhk; kw;Wk; v';fsplk; f";rh vd;fpw nghij bghUs; cs;sJ vd;Wk; bjuptpj;njhk;/ me;j rkaj;jpy; uhzpa[k;. ujpa[k; mtu;fs; ifapypUe;j 2 Bag-I mg;gona v';fs; gf;fk; itj;Jtpl;L Tl;lj;jpy; fye;J Xotpl;ldu;" From the above statement, it is clear that at the time of apprehending A1 and A2 in Mambalam Railway Station, both were found in possession of Ganja. However, they have stated that they were carrying only one bag of Ganja and other bags belonged to Rani (A3) and Rathi (A4) who made good their escape in the Mambalam Railway Station on seeing the police personnel. The NCB Officials had seized Ganja from six bags which measured 12.800 + 12.600 + 12.100 + 14.100 + 4.200 + 5.500 = 61.300 kgs. The maximum weight of Ganja in one bag is thus 14.100 kgs. Therefore, the accused 1 and 2 cannot be said to be in possession of commercial quantity of Ganja which as per the Act is more than 20 kilograms. In fact, the NCB officials arrested Rathi (A4) and Varasanattu Daivam (A5) and the case against Rani (A3) was split up in C.C.No.63/2013. Therefore it cannot be stated that A3 to A5 are imaginary persons. The trial court had analysed the evidence of the prosecution and also the statements of A1 and A2 recorded by the NCB Officials under Section 67 of NDPS Act and found them guilty of the offence for possessing Ganja which cannot be more than 14.100 kgs. It is also in the evidence that the accused 1 and 2 were carrying Ganja for a paltry sum of Rs.1,000/-. It is to be pointed out that the NCB Officials had not taken steps to know the source of procurement of Ganja by A1 to A4 and the person to whom A5 would be handing over the same.

¶8Drug menace is a world wide problem. With such stringent laws in India to curb the menace, we have not been able to go to the root of the problem. NDPS officials in most of the cases book only the carriers and never go beyond it. The source and the destination (as to who intends to procure it in large scale) are never probed into and no concerted efforts to nab the 'real culprits' are made.

¶9Tmt.Rathi (A4) was arrested and was remanded to judicial custody but her statement under Section 67 of NDPS Act was not recorded by the NCB Officials. The NCB Officials mainly relied on the statements of A1 and A2 for convicting the fourth accused. The fourth accused had not been apprehended by the police while carrying Ganja and she was subsequently arrested based on the confessions of A1 and A2. The trial court had also gone into this aspect and had concluded that A4 cannot be convicted for the offences punishable under Section 8(c) r/w. 29 of NDPS Act, merely based on the confession of A1 and A2.

¶10It is settled that confession of a co-accused is a very weak piece of evidence and it does not come within the definition of evidence as contemplated under Section 3 of the Indian Evidence Act, since it is not required to be given on oath, nor to be given in the presence of the accused. It cannot also be tested by way of cross examination. In these circumstances, based on the Section 67 statement of A1 and A2 it is difficult to convict A4 and the trial court by a well reasoned order had convicted the accused 1 and 2 for the offences punishable under Section 8(c) r/w.20(b)(ii)(B) of NDPS Act and acquitted the fourth accused. I do not see any reason to interfere with the judgement and orders passed by the trial court judge.

¶11In the result, i. The Criminal Appeal is dismissed ii. The judgment and orders dated 28.02.2017 passed in C.C.No.35/2012 by the Special Judge, II Additional Special Court under NDPS Act, Chennai, is confirmed. iii. This Court places on record its appreciation to Ms.S.Varshini and Ms.S.Vasavi Sridevi learned Legal Aid counsels, for their valuable assistance in deciding this case. The High Court Legal Service Committee shall pay their fees in accordance with rules.

18.07.2024

Index : yes/no Speaking /Non speaking Order mtl Copy to The Secretary, High Court Legal Services Committee, High Court Campus, Chennai 104. To

1.The Special Judge, II Additional Special Court under NDPS Act, Chennai.

2.The Public Prosecutor, High Court, Madras.

3.The Section Officer, Criminal Section, Madras High Court, Chennai.

R. HEMALATHA, J. mtl

18.07.2024

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.07.2024 CORAM THE HONOURABLE MRS. JUSTICE R. HEMALATHA Intelligence Officer, Narcotic Control Bureau, Chennai Zonal Unit, Chennai - 600 090. ... Appellant Vs. 1.Selvi 2.Janaki 3.Rathi ... Respondents Prayer : Criminal Appeal filed under Section 377 (2) and 378 Criminal Procedure Code 1973, to set aside the judgement and orders dated 28.02.2017 passed in C.C.No.35/2012 by the Special Judge, II Additional Special Court under NDPS Act, Chennai. For Appellant : Mr.N.P.Kumar Special Public Prosecutor for Central Government For RR1 and 2 : Ms.S.Varshini Legal Aid Counsel For R3 : Ms.S.Vasavi Sridevi Legal Aid Counsel