K.K.NAUSHAD Vs. INTELLIGENCE OFFICER

JUDGEMENT

(1.) This appeal is filed by accused Nos. 1 to 3 in SC No. 62/2004 on the file of the Special Judge for trial of cases under the Narcotic Drugs and Psychotropic Substances Act, Thiruvananthapuram. The appellants faced trial for the offences punishable under Ss.21(c), 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act").

(2.) The prosecution case against the appellants was that on 31/07/2003 at about 6.30 a.m. on getting information regarding the conspiracy to send narcotic drugs to Saudi Arabia by Fight AI 927, the Intelligence Officer attached to the Narcotic Control Bureau, Thiruvananthapuram along with PW 5 and other staff proceeded to Thiruvananthapuram International Airport. It is the further case of the prosecution that at about 8.45 a.m. they saw two persons entering the Departure Terminal each carrying a hand bag who after collecting their boarding passes moved to the emigration counter and after a while they returned to Air India Counter, surrendered their boarding passes and went out and got into the rear seat of an Indica car bearing Registration No. KL-07-AN 756. Thereupon the officials along with two witnesses approached the car and found accused Nos. 1 to 3 and the driver of the car and on questioning accused Nos. 1 and 2 admitted that each of the bags contained 1 Kg. of brown sugar. The prosecution further alleged that the bags on examination were found to contain concealed packets and on testing the same, it was found to be heroin. Thereafter the bags were seized and samples were taken for chemical analysis and after recording the statements of accused Nos. 1 to 3 as per S.67 of the NDPS Act, they were arrested. Further investigation was carried out by PW 6 and final charge was filed against the appellants for the offences alleged against them. To prove the case against the appellants, the prosecution examined PWs. 1 to 6 and relied on Exts. P1 to P37 as well as MOs 1 to 16. DW 1 was examined on the side of the defence, but no documentary evidence was adduced. On closing the prosecution evidence, the appellants were questioned under S.313 CrPC. The appellants denied the prosecution allegations and filed separate statements. Accused Nos. 1 and 2 specifically stated that no contraband articles were seized from their possession and that they went to the airport to go to Riyad. They also stated that the Intelligence Officers had not complied with the provisions of S.50 of the NDPS Act and that they were not given an opportunity to exercise their right to have the presence of a Gazetted Officer before conducting search of their body. Accused Nos. 1 and 2 further stated that all the documents alleged to have been signed by them and produced by the prosecution were actually created by using force against them and that they were arrested from A. V. M lodge while they went back to the lodge from the airport to collect some documents. Accused No. 3 had also stated that no contraband articles were seized from accused Nos. 1 and 2 who came to the airport to go to Riyad. According to him, he came to the airport to see off accused Nos. 1 and 2, his step sons, who were leaving for Riyad and that while he was sleeping in A. V. M lodge, the Intelligence Officers came there, took him into custody and forced him to sign certain papers. All the appellants denied having given any statements under S.67 of the NDPS Act as alleged by the prosecution and that stated that all the documents produced by the prosecution were concocted ones. However, relying on the prosecution evidence, the Trial Court found the appellants guilty under S.21(c), 28 and 29 of the NDPS Act, convicted them thereunder and sentenced them each to undergo rigorous imprisonment for ten years and to pay a fine of rupees One lakh each and in default of payment of fine, to undergo simple imprisonment for a further period of one year each under S.21(c) of the NDPS Act. No separate sentence was awarded under Ss.28 and 29 of the NDPS Act. Set off was also allowed. The above conviction and sentence are challenged in this appeal.

(3.) The learned senior counsel Sri. M. K. Damodaran appearing for the appellants had taken the following contentions challenging the judgment of the Trial Court: (i) the Trial Court had not appreciated the prosecution evidence in the light of the case put forward by the accused when they were questioned under S.313 CrPC as there was no independent evidence adduced by the prosecution to prove the alleged seizure of the contraband articles from the appellants, (ii) the officials had not complied with the mandatory provisions of the NDPS Act while conducting search of the body of the appellants and seizing the contraband articles as there is no acceptable evidence that the officers had complied with S.50 of the NDPS Act while conducting search and seizure and that no legal value can be attached to the evidence of the investigating officer who actually participated in the search and seizure and taking samples of the contraband articles, (iii) the Trial Court had committed serious error in finding the appellants guilty of the charges relying on the statements alleged to have been recorded under S.67 of the NDPS Act without any corroborative piece of evidence, (iv) the Trial Court went wrong in finding that the contraband articles seized and the samples analysed were heroin as the chemical analyst had not given any admissible opinion with regard to the quantity or purity of the substance analysed by him and Ext. P19 report of the chemical analyst would not prove that the samples analysed were heroin. According to the chemical analyst, the test conducted by him was only colour test and not any other approved test to find out the nature of the substance and (v) even if the entire prosecution evidence is accepted, the appellant can be found guilty only under S.21(a) of the NDPS Act as Ext. P19 report does not contain any data regarding the percentage or purity of diacetylmorphine contained in the contraband articles seized from accused Nos. 1 and 2.