THARMARASA SATHEESAN Vs. INTELLIGENCE OFFICER

JUDGEMENT

(1.) The petitioner, who has been arrayed as A-3 out of four accused including one juvenile accused, has been convicted by the learned Principal Special Judge under EC & N.D.P.S. Act. Chennai by the judgment dated 27.12.2010 made in C.C.No. 119 of 2005 for the offence under Sections 8(c) read with 29, 21(c), 28 and 27A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act') and sentenced to undergo rigorous imprisonment for 10 years with a fine of? I lakh for each learned Senior Counsel that the learned Trial Judge by placing reliance on the confession, Exhibit P-40, said to have been recorded from A-3, erroneously held offence and in default to undergo rigorous imprisonment for 6 months for each offence, has come for- ward with this petition, seeking for the relief of suspension of sentence.

(2.) Mr. V. Gopinath, learned Senior Counsel appearing for the petitioner submitted that the petitioner has been arrayed as A-3 out oft four accused and one among them is the juvenile accused and the co-accused, namely A-1 and A-2 have been convicted and sentenced as that of the petitioner/appellant herein, as stated above. It is further submitted that another Juvenile accused was dealt with by the Juvenile Board in respect of the same offences. It is contended by the learned Senior Counsel that the recovery of the contraband namely Heroin was made only from A-1, A-2 and one Juvenile accused and not from A-3, the appellant herein. The learned Senior Counsel further contended that as far as the petitioner/A-3 is concerned, the prosecution placed reliance on the confession, Exhibit P-40, said to have been recorded from the petitioner/A-3 and the confession under Exhibit P-14 recorded from A-1 as per the provision under Section 67 of the Act. It is contended that as far as Exhibit P-40, the confession said to have been recorded from the petitioner/A-3 is concerned, the entire statement is exculpatory and as such, it could not be construed to be a confession as contemplated under Section 67 of the Act. The petitioner has also retracted the said confession at the earliest point of time as he has been arrested on 31.1.2005 and retracted on 11.2.2005. The learned Senior Counsel contended that as far as the confession, Exhibit P-14, said to have been recorded from A-1 is concerned, it is the confession of the co-accused and it cannot be treated as a substantive piece of evidence. It is pointed out by the learned Senior Counsel that the learned Trial Judge by placing reliance on the confession, Exhibit P-40, said to have been recorded from A-3, erroneously held that A-3 has stated in the said confession that he has given Rs. 3 lakhs to A-1 to fetch the contraband involved in this matter, but the said finding is erroneous as the confession, Exhibit P-40, said to have been recorded from the petitioner/A-3 does not contain such statement at all. In support of his contentions, the learned Senior Counsel also placed reliance on the following decisions :

(3.) Per contra, Mr. N.P. Kumar, learned Special Public Prosecutor appearing for the respondent submitted that the prosecution has adduced enough evidence to implicate the petitioner, who has been arrayed as A3. It is contended that the prosecution placed reliance on the confession of A-3 under Exhibit P-40 and as well as the confession of A-1 under Exhibit P-14. It is pointed out by the learned Special Public Prosecutor that in the confession of A-3 viz., Exhibit P-40, it is stated that he would contact his relatives from Sri Lanka in order to get the amount asked by A-1 for fetching the contraband in this case. It is contended that Al's statement recorded under Section 67 of the Act as per Exhibit P-14 implicates A3 for the receipt of Rs. 3 lakhs from A-3 by A-1 for purchasing the contraband. The learned Special Public Prosecutor further contended that the petitioner is a Sri Lankan citizen and in the event of releasing the petitioner on bail, he would likely to flee from justice and on such an event, it is very difficult to fetch him. The learned Special Public Prosecutor also placed reliance on the decision of the Hon'ble Supreme Court in Ratan Kumar Vishwas v. State of Uttar Pradesh and Another, 2009 1 SCC(Cri) 546.