SHANMUGAM Vs. STATE

JUDGEMENT

(1.) THE first appeal is brought forth by A-3 who was found guilty under Sec. 8 read with 17 of the N. D. P. S. Act and sentenced 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 the later appeal is brought forth by the State aggrieved over the judgment of acquittal made by the trial Court in respect of A-1, A-2 and a-4.

(2.) THE short facts necessary for the disposal of both these appeals can be stated as follows: (a) THE accused 1 to 4 as a gang was operating between India and Sri Lanka across the straits. Pursuant to the intelligence gathered, A-3 was intercepted by P. W. 1 tmt. R. Vijayalakshmi, an Intelligence Officer and P. W. 12 Chandrasekaran, superintendent on 16. 10. 1993 at 11. 00 P. M. in Kolathur, Chennai. A-3 was travelling in an auto rickshaw bearing Registration No,. TSH 1168 driven by p. W. 5 Shenbagasekaran. P. Ws. 1 and 12 seized 970 grams of heroin in the presence of P. W. 5 and one Nawab John. Two samples under M. Os. 2 and 3 were drawn from the seized heroin, and the entire seizure has been recorded in Ex. P1 mahazar. THE rest of the contraband is marked as M. O. 1. THE said P. W. 12 is an Officer of gazetted rank, and thus, he was empowered under Sec. 41 (2) of NDPS Act to conduct the search and the seizure or authorise the subordinates to do the same. After seizure of the heroin from A-3, his statement under Sec. 67 of the ndps Act was recorded by P. W. 1, and the same is marked as Ex. P2. A-4 was intercepted on 17. 10. 93 near Central Railway Station at 8. 45 A. M. by P. W. 6 gopalan, when he just arrived from Delhi by G. T. Express. THE belongings of A-4 was searched in the presence of P. W. 8 sathya, and incriminating documents like air tickets, train ticket, telephone numbers, visiting cards and cash of Rs. 29,000/- were seized under Ex. P41 mahazar. After the search and the seizure, the statement of A-4 under Sec. 67 of the Act was recorded in the presence of P. W. 6 at the NCB Office and marked as ex. P42. (b) On 17. 10. 93 at 11. 30 A. M. , Room No. 206, Visweshwara bhavan at Millers Road , Madras 10, which was in the occupation of A-2 Asokan was searched by P. W. 4 Ashokraj in the presence of p. W. 9 Gopal and one Saravanan. THE incriminating documents like spiral note book containing certain details, a letter head of Oxford Furniture, etc. , were recovered in the room. After the search and seizure, the statement of A-2 was recorded by P. W. 4 under Ex. P38. On 17. 10. 1993, the residence of A-1 Rajasingh at Aziz Nagar, Kodambakkam, Madras 24 was searched at 1. 15 P. M. by P. W. 2 and p. W. 12 in the presence of the independent witnesses P. W. 3 Muthu and one Mohan. During the search, incriminating documents under Exs. P26 to P31 were recovered under Ex. P21 mahazar. THEreafter, A-1's statement under Sec. 67 of the NDPS Act was recorded by P. W. 2, and the same is marked as Ex. P22. In the course of the enquiry under Sec. 67 of the Act, A-3 revealed that he has kept 25 kilos of opium concealed at a place in Mariyur, Ramnad District, and that he would show the place where he had kept the contraband hidden if he is taken to that place. After recording the said statement, A-1 was arrested by P. W. 2 by serving the arrest memo marked as Ex. P23. A-2 was arrested by P. W. 4 vide arrest memo under ex. P39. A-3 was arrested by P. W. 1 vide arrest memo under Ex. P3, and A-4 was arrested by P. W. 6 under Ex. P43 arrest memo. After their arrest, all the accused were produced before the Chief Judicial Magistrate, Egmore, Madras vide Ex. P6 remand application. THE seized heroin under M. O. 1 with the two samples under m. Os. 2 and 3, cash of Rs. 29,000/- and all other documents that were seized from various places as stated above were submitted to the remanding Magistrate along with remand application under Ex. P6. (c) Since A-3 disclosed that he had concealed 25 kilos of opium at a place in Mariyur, P. W. 1 requested the remanding Magistrate to give a-3 in her custody. Accordingly departmental custody of A-3 was given on 18. 10. 93, pursuant to which P. Ws. 1 and 12 took A-3 to his native place at mariyur in Ramnad District. THEy reached Mariyur and very near his hut 25 kilos of opium concealed by him was recovered by P. Ws. 1 and 12 under Ex. P5 mahazar. After seizing the contraband, A-3 was returned to judicial custody and was produced before the remanding Magistrate along with 25 kilos of seized contraband of opium on 21. 10. 93 for further judicial custody. THE samples drawn from the said heroin as well as from the opium were sent for chemical analysis. P. W. 10 Ameerrasakkhan, the Chemical Examiner by his report under Ex. P56 confirmed the presence of Di-acetyl Morphine in M. O. 2. Further P. W. 10 in his report under Ex. P57 has confirmed that the 25 samples were opium. As a measure of further investigation, a sum of Rs. 40,000/- was taken possession from one dhanraj, a relative of A-1 by P. Ws. 1 and 12 under Ex. P18 on 22. 10. 93. THE said sum of Rs. 40,000/- is marked as M. O. 87. Following the same, the Manager of the std Booth from where A-1, A-2 and A-3 used to make telephone calls to Delhi and sri Lanka was examined under Sec. 67 of the Act. He was examined in Court as p. W. 14 Srinivasan. P. W. 14 identified A-1 to A-3 as persons who used his STD booth to make national and overseas calls. THE telephone calls made from the std Booth telephone No. 4833961 between 1. 8. 93 and 15. 8. 93 to certain specified numbers in Madhya Pradesh, Delhi and Sri Lanka were obtained from the Telephone department vide Ex. P61. Based on the materials collected, a complaint under sec. 36 (a) (i) (d) of the N. D. P. S. Act was filed against A-1 to A-4.

(3.) ASSAILING the judgment of acquittal by the lower court, the learned Special Public Prosecutor for the State in C. A. No. 802/99 raised the following submissions for consideration by this Court: The trial Court has acquitted A-1, A-2 and A-4 stating that the prosecution has failed to adduce satisfactory evidence regarding conspiracy. It was because of the non-appreciation of the evidence adduced by the prosecution in that regard. The statement of A-3 was recorded under Sec. 67 of the NDPS Act at the earliest, wherein he has referred to A-1, A-2 and A-4, and pursuant to the same, the prosecution documents namely Exs. P25 to P31 from a-1, Exs. P33 to P37 from A-2 and Exs. P45 to P49 from A-4 were seized. They would clearly speak about the association of the accused with each other and would clearly establish the conspiracy in which each and every accused had a role to play. The recovery of those documents effected from A-1, A-2 and A-4 would clearly corroborate the statement of A-3. In a case of conspiracy, what is expected in law is not a corroboration of each and every material particular, but a general corroboration would be suffice. The lower Court has failed to note that there was no satisfactory explanation for retraction. If the statements are voluntary and retracted subsequently, it would indicate the after thought, and those voluntary statements could be relied. From the evidence available, it was very clear that all the accused 1 to 4 have involved in clandestine activities, and hence, there cannot be any distinct and direct evidence. The conspiracy aspect of the case was necessarily an inferential fact fromm the proved facts and circumstances. The lower Court has taken a wrong view that every link in the conspiracy was to be proved. The lower Court has taken into consideration the evidence of P. W. 9, a hostile witness and hence should have rejected the interested evidence of D. W. 1 as regards A-1. Before coming to the conclusion on the question of conspiracy, the lower Court has not assessed the evidence in its totality. The reasons adduced for acquitting A-1, a-2 and A-4 on the charge of conspiracy are unsound and unsustainable. Hence, the judgment of acquittal of the trial Court has got to be set aside, and the respondents/a-1, A-2 and A-4 should be found guilty of the charge of conspiracy under Sec. 29 of the NDPS Act.