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2004 DIGILAW 138 (KER)

R. Nagarajan v. The Intelligence Officer

2004-03-29

N.KRISHNAN NAIR

body2004
Judgment :- These appeals are directed against the judgment and order dated 5th April, 2002 of the Special Judge for trial of N.D.P.S.Act cases, Thiruvananthapuram. The appellants were charged with the offences punishable under Section 8 (c) read with Sections 21, 27A, 28 and 29 of the Narcotic Drugs and Psychotripic Substances Act. After the trial the learned Special Judge found all the accused guilty of the offence under Section 21 of the N.D.P.S.Act and convicted them. They were sentenced to undergo rigorous imprisonment for a period of 10 years each and also to pay a fine of Rs.one lakh each; in default to undergo rigorous imprisonment for two years each. The 1st accused is the appellant in Crl.A.No.339/2002 and the 2nd and 3rd accused are the appellants in Jai Appeal Nos.1635/2003 and 1634/2003 respectively. 2. The prosecution case is as follows: on 14-11-2000 at about 4 p.m. P.W.5, the intelligence Officer, Narcotic Control Bureau, received reliable information that accused 1 and 2 have checked in room No.115 of the Dwaraka Lodge at Moonnukallinmoodu of Neyyattinkara, Thiruvananthapuram, with one kilogram of brown sugar for the purpose of sale. He reduced the information into writing and gave Ext.P13 (the information recorded) to P.W.6, the Superintendent, N.C.B. After obtaining permission from P.W.6, P.W.5 along with P.Ws. 6 and 7 proceeded to the Dwaraka Lodge. Accused 1 and 2 were found in room No.115 of the lodge. A search was conducted in room No.115 in the presence of P.W.1, the Watchman of the lodge, and a witness by name of Peethambaran, who was the proprietor of a readymade shop situated near to the lodge. The search thus conducted by P.W.5 resulted in the seizure of one kilogram of brown sugar kept in a black leather bag, M.O.3 (a). Two samples were taken weighing 5 grams each from the seized powder and they were separately sealed and packed. The remaining powder was also sealed in the polythene packet. In the presence of accused 1 and 2 and the other witnesses P.W.5 prepared Ext.P1 mahazar and got the same signed by accused Nos.1 and 2. P.W.5 served Exts.P14 and P15 summons under Section 67 of the N.D.P.S. Act to accused 1 and 2 and directed them to appear for interrogation on he next day at 11 a.m. before the office of the Narcotic Control; Bureau, Thiruvananthapuram. P.W.5 served Exts.P14 and P15 summons under Section 67 of the N.D.P.S. Act to accused 1 and 2 and directed them to appear for interrogation on he next day at 11 a.m. before the office of the Narcotic Control; Bureau, Thiruvananthapuram. In obedience to the summons accused 1 and 2 appeared in the office of the N.C.B. Thiruvananthapuram and gave Exts.P7 and P16 statements respectively. Immediately thereafter P.W.5 arrested accused 1 and 2. On the basis of the information furnished in Exts.P7 and P16 statements that accused 1 and 2 got narcotic drug for sale from the 3rd accused, P.W.5 directed P.W.7 to serve summons on the 3rd accused. On 15-11-2000 P.W.5 served Ext.P26 summons on the 3rd accused at Madurai directing him to appear before him on 16-11-2000. When the 3rd accused appeared, P.W.7 recorded Ext.P9 statement given by him. Immediately thereafter accused No.3 was arrested by P.W.5. Subsequent investigation was conducted by P.W.7, who after completing the investigation laid the complaint before the lower court. 3. The accused denied the charge. Thereupon the prosecution examined P.Ws.1 to 7, marked Exts.P1 to P27 and identified M.Os.1 to 4(a). The defence examined three witnesses as D.Ws.1 to 3 and marked Exts.D1 and D2. On an elaborate consideration of the evidence brought on record, the learned Special Judge found the accused guilty of the offence, convicted them and sentenced them as stated earlier. 4. The learned counsel for the appellants strongly contended that as no quantitative test was conducted in this case, it cannot be said that the seized contraband was heroin as defined under the N.D.P.S. Act. It is also contended that the Intelligence Officers, who conducted the search and seizure in this case and filed the compliant were not duly authorized to do so since there was nothing on record to show that they were holding the rank of Inspectors or above in the departments of Central Excise, Narcotics, Customs and Revenue Intelligence and in Central Economic Intelligence Bureau. It is further contended that the court below has misunderstood and misappreciated the evidence in the case. On the other hand the learned counsel for the respondents supported the order of conviction and sentence passed against the appellants and urged that there is no ground for interference. 5. The first question arising for consideration is whether the prosecution was succeeded in proving that 1 kg. On the other hand the learned counsel for the respondents supported the order of conviction and sentence passed against the appellants and urged that there is no ground for interference. 5. The first question arising for consideration is whether the prosecution was succeeded in proving that 1 kg. of herein was recovered from the possession of A1 and A2 as alleged by the prosecution. The prosecution relies on the evidence of P.W.1, P.W.5, P.W.6 and P.W.7 to prove the recovery of herein. P.W.1 is the Watchman of Dwaraka Lodge who is giving the room on rent to the customers. The evidence of P.W.1 corroborates the evidence of P.W.5 and P.W.6 that on getting information about the occupation of A1 and A2 in a room at Dwaraka lodge with narcotic drug they reached there by 11.30 p.m. on 14-11-2000. The evidence would establish that P.W.7 waited outside the lodge while P.W.5 and P.W.6 proceeded to the room along with the witnesses. When they knocked at the door, the 1st accused opened the door. The 2nd accused was found sitting inside the room. P.W.5 informed the accused their intention to conduct a search. P.W.5 also appraised the accused of their right to be searched in the presence of a Gazetted Officer or a Magistrate. A1 and A2 waived their right. When A1 and A2 were asked as to whether they were in possession of any narcotic drug the 1st accused admitted that they were in possession of 1 kg. Of heroin. Then A2 took out M.O.3 (a) bag and handed over it to P.W.5. The evidence of P.W.1, P.W.5 and P.W.6 would also establish that P.W.5 took a pinch of the powder from the packet found inside the polythene bag and tested it using the Field Drug identification Kit and found that it was heroin. P.W.5 thereafter took the samples of 5 grams each and the samples were separately packed and sealed. The remaining powder was kept in the polythene cover and packed. It is also gatherable from the evidence that P.W.5 served Exts.P14 and P15 summons respectively on A1 and A2. There is no reason to discard the evidence of P.W.1, P.W.5 and P.W.6. Their evidence is also corroborated by Ext.P7 statement of the 1st accused and Ext.P16 statement of the 2nd accused. No doubt accused 1 and 2 have a case that Ext.P7 and P16 are not voluntary statements. There is no reason to discard the evidence of P.W.1, P.W.5 and P.W.6. Their evidence is also corroborated by Ext.P7 statement of the 1st accused and Ext.P16 statement of the 2nd accused. No doubt accused 1 and 2 have a case that Ext.P7 and P16 are not voluntary statements. It is in evidence that Ext.P7 statement was recorded in the presence of P.W.4. It was P.W.4, who prepared Ext.P6 translation. There is no reason to discard the evidence of P.W.4, who is the Professor of Tamil in the University. The defence examined D.W.2 and marked Ext.D1. According to the learned counsel for the appellants, P.W.4 has manipulated the entry in Ext.D1 by adding “duty leave” when he was on special casual leave. The question whether he was on special casual leave or duty leave is immaterial because he has no case that he was present in the University when the statements were recorded. 6. It is further contended that the person who had taken room No.115 as per Ext.P4(a) entry is not the 1st accused or the 2nd accused, but one S.K.Kumar. No doubt, as per Ext.P4(a) entry, the occupant of Room No.115 is one S.K. Kumar, 125 North Street, Pattiprianparti, Vatla, Gandu, Dindughal District, which is admittedly not the name and address of either the 1st accused or the 2nd accused. According to the learned counsel for the appellants, there is no reliable evidence on record to show that accused 1 and 2 were in occupation of room No.115 of Dwaraka lodge on the date of the alleged search and seizure and therefore the prosecution must fail. Much reliance was placed on the evidence of D.W.3. D.W.3 has stated in his evidence that it was he who occupied the said room on 14-11-2000. P.W.1 was the Watchman of the lodge who maintained Ext.P4 (a) register. The evidence of P.Ws.1, 5 and 6 would show that accused 1 and 2 were in occupation of the room. Their evidence is also corroborated by the version of the 1st accused in Ext.P7 statement and that of the 2nd accused in Ext.P16 statement. P.W.1 was the Watchman of the lodge who maintained Ext.P4 (a) register. The evidence of P.Ws.1, 5 and 6 would show that accused 1 and 2 were in occupation of the room. Their evidence is also corroborated by the version of the 1st accused in Ext.P7 statement and that of the 2nd accused in Ext.P16 statement. According to me, there is reliable and convincing evidence in this case to show that when P.Ws.5 and 6 entered into room No.115 accused 1 and 2 were found inside that room and when asked whether they were possessing any narcotic drug, the 1st accused admitted the possession of the narcotic drug and the 2nd accused took out M.O.3 (a) bag which contained one kilogram of heroin. 7. The learned counsel for the appellant in Crl.A.No.1634/2003 strongly contended that there is no reliable material on record to connect the 3rd accused with the crime. According to him, the statement alleged to have been made by the 3rd accused is not voluntary and therefore no reliance could be placed on the statement. He also pointed out that there was no recovery of narcotic drug from the possession of the 3rd accused. No doubt the prosecution has no case that heroin was recovered from the possession of the 3rd accused. But, according to the prosecution Exts.P7 and P16 statements given by A1 and A2 disclosed that A1 and A2 got the narcotic drug for sale from the 3rd accused. It is in evidence that on 15-11-2000 P.W.5 served Ext.P26 summons to the 3rd accused at Madurai directing him to appear before the N.C.B. office on 16-11-2000. When the 3rd accused appeared be gave Ext.P9 statement. 8. According to the learned counsel Ext.P9 is not a voluntary statement and is also hit by Section 25 of the Evidence Act. I cannot agree. The Supreme Court in Mangal Singh Bhan Sigh v. State of Gujarat (1989 Crl.L.J. 460) held that the statement made before the enforcement officer by the accused is not hit by Section 25 of the Evidence Act. Again in Raj Kumar Karwal v. Union of India (A.I.R. 1991 S.C. 45) the Supreme Court has held that officers invested with powers under Section 53 of the N.D.P.S. Act are not police officers with the meaning of Section 25 of the Evidence Act. Again in Raj Kumar Karwal v. Union of India (A.I.R. 1991 S.C. 45) the Supreme Court has held that officers invested with powers under Section 53 of the N.D.P.S. Act are not police officers with the meaning of Section 25 of the Evidence Act. Thus statements recorded by them are not hit by Section 25 of the Indian Evidence Act. In this connection it is also relevant to note the decision of this court in Divakaran v. State of Kerala (1998 (2) KLT 53). 9. There is also no force in the contention of the 3rd accused that Ext.P9 statement is not voluntary. It is in evidence that Ext.P9 statement of the 3rd accused was recorded in Tamil by P.W.4. P.W.4 has deposed that as requested by the N.C.B. Officials he was present at the office of the N.C.B. Officials he was present at the office of the N.C.B. and recorded Ext.P9 statement given by the 3rd accused in Tamil. He has also stated that he had prepared Ext.P10 translation. Though P.W.4 was subjected to incisive cross examination, nothing was brought out to impeach his credibility as a truthful witness. P.W.4 has asserted in his evidence that he has recorded Ext.P9 statement as dictated by the 3rd accused. His evidence is confirmed and corroborated by the evidence of P.W.5. The evidence of P.W.4 and P.W.5 would establish that Ext.P9 is the voluntary statement of the 3rd accused. 10. Ext.P9 was recorded before the 3rd accused was arrested and named as an accused. There is nothing on record to indicate that Ext.P9 statement was obtained by threat, duress or promise. Even if it is assumed that Exts.P7 and P15 statements cannot be used for basing the conviction of the 3rd accused, Ext.P9 statement can be used against the 3rd accused since it is a voluntary statement made by him. 11. Then the question for consideration is whether the Intelligence Officers who conducted the investigation in the case and filed the report were authorized officers. In this case substantial portion of the investigation was conducted by P.W.5, who at the time of the alleged commission of the offence was employed as an Intelligence Officer, Narcotic Control Bureau, Thiruvanthapuram. Subsequently P.W.7, the intelligence officer, Narcotic Control Bureau, Thiruvananthapuram completed the investigation and filed the compliant under Section 36A (1) (d) of the N.D.P.S. Act. In this case substantial portion of the investigation was conducted by P.W.5, who at the time of the alleged commission of the offence was employed as an Intelligence Officer, Narcotic Control Bureau, Thiruvanthapuram. Subsequently P.W.7, the intelligence officer, Narcotic Control Bureau, Thiruvananthapuram completed the investigation and filed the compliant under Section 36A (1) (d) of the N.D.P.S. Act. It is quite clear from Sections 42 and 43 of the N.D.P.S. Act that the officer conducting the search should be a person who has been empowered in this behalf in terms of a general or special notification issued either by the Central Government or State Government. In exercise of the powers conferred by sub-section (1) of Section 53 of the N.D.P.S. Act, the Central Government issued the Notification No. S.O.823 (E), which reads as under: S.O.823 (E) – In exercise of the powers conferred by sub-section (1) of Section 53 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Central Government, after consultation with all the State Governments hereby invests the officers of and above the rank of Inspector in the departments of Central Excise Narcotics, Customs and Revenue Intelligence and in the Central Economic Intelligence Bureau and Narcotic Control Bureau with the powers specified in sub-section (1) of the Section. The question whether an empowered officer of the Narcotic Control Bureau is entitled to conduct search and seizure is no longer les-integra, in view of the decision of the Supreme Court in State through Narcotics Control Bureau v. Kulwant Singh (2003 (2) KLT 110). As per the decision, the Narcotic Control Bureau is a wing or branch of the Department of Revenue of the Central Government and hence the officers of the NCB can be authorized to effect search, seizure and arrest under the NDPS Act. According to the learned counsel for the appellants, though the officers of the NCB can be authorized to effect search, seizure and arrest under the N.D.P.S. Act. Intelligence Officers were not authorized to do so. In other words, according to the learned counsel, Intelligence Officers are not officers of and above the rank of Inspectors of the departments referred to above. Intelligence Officers were not authorized to do so. In other words, according to the learned counsel, Intelligence Officers are not officers of and above the rank of Inspectors of the departments referred to above. No doubt, as has been held by the Supreme Court in Roy v. State of Kerala (2001 (1) KLT 86), no officer other than an empowered officer can resort to search, seizure, and arrest of the accused and file the complaint. I cannot agree with the learned counsel for the appellants that P.Ws.5 and 7 have not been authorized to conduct search, seizure and arrest the accused and file the complaint. Admittedly, at the time of the search, seizure and arrest of the accused, P.Ws.5 and 7 were Intelligence Officers. As per the Department of Revenue Narcotics Control Bureau (Intelligence Officer) Recruitment Rules, 1996, the Intelligence Officer is classified as Group-B Non-Gazetted Non-Ministerial officer. But the Central Excise and Land Customs Department Inspector (Group-C posts) recruitment Rules 2002 would show that the Inspector (Preventive Officer) is classified as Group-C Non-Gazetted and Non-Ministerial officer. 12. In this connection it is relevant to note the decision of the Supreme Court Saikou Jabbi v. State of Maharashtra (2004 (1) Crimes 112 (SC)). In that case, the accused a Gambian national, was apprehended around midnight of 17-9-1993 at the Sahara Airport Bombay for carrying hereon in his baggage in E.T. Flight No.661. Ashok Thakur (P.W.1) an Intelligence Officer of the Narcotic Bureau searched the baggage and about 1 kg. Of hereon was seized which was concealed in a suit case. After recording the statement accused was taken into custody for alleged contravention of various provisions of the N.D.P.S. Act and also the Customs Act, 1962. The accused was tried in the Court of Special Judge, Greater Bombay. After the trial the learned Special Judge acquitted the accused of all the charges on the ground that there was violation of mandatory provisions of Sections 42 (2) and 50 of the N.D.P.S. Act. In appeal the Bombay High Court set aside the order of acquittal and convicted and sentenced the accused. The judgment of the Bombay High Court was challenged in appeal before the Supreme Court. The Supreme Court dismissed the appeal confirming the conviction and sentence passed by the High Court. In appeal the Bombay High Court set aside the order of acquittal and convicted and sentenced the accused. The judgment of the Bombay High Court was challenged in appeal before the Supreme Court. The Supreme Court dismissed the appeal confirming the conviction and sentence passed by the High Court. It has to be noted that the search, seizure and the arrest were effected in that case by an Intelligence Officer of the N.C.B. No doubt the question whether an Intelligence Officer is an empowered officer or not was considered by the Supreme Court. But the Supreme Court would not have confirmed the conviction and sentence passed against accused, if P.W.1, the Intelligence Officer was not an empowered officer. 13. There is also no force in the contention of the learned counsel for the appellants that the evidence on record is not sufficient to prove that the contraband under seizure was heroin as defined under the N.D.P.S. Act. No doubt, as per Section 2 (xvi) (e) of the N.D.P.S. Act, only preparations containing more than 0.2% of morphine should be treated as heroin. In this case, according to the learned counsel, no quantitative test for ascertaining the percentage of morphine was conducted and hence it cannot be said with absolute certainty that the article under seizure was heroin. In this case no quantitative test was conducted. The evidence of P.W.2, the Chemical Examiner, Customs Laboratory, Cochin, and Ext.P5 report would show that the sample was found to be crude hereon on analysis. As quantitative test was not conducted at the laboratory, the remnants received in court was sent to the chemical examiner, Department of revenue, Ministry of Finance, Central Revenue Control Laboratory, New Delhi and Ext.P27 report was obtained. It is gatherable from Ext.P27 that on the basis of chemical and chromatographic examination it has been concluded that the sample received at the laboratory and examined is discetyl morphine, which is also called as hereon. The prosecution is only bound to prove that the substance seized is heroin, namely, discetyl morphine. As observed by the learned Special Judge, the purity of hereon is not necessary or relevant for finding commission of an offence under Section 21 of the N.D.P.S. Act. The prosecution is only bound to prove that the substance seized is heroin, namely, discetyl morphine. As observed by the learned Special Judge, the purity of hereon is not necessary or relevant for finding commission of an offence under Section 21 of the N.D.P.S. Act. In this case, the evidence on record would show that the prosecution his succeeded in proving that the seized contraband is discetyl morphine, namely hereon, a narcotic item as defined under the N.D.P.S. Act. 14. It is also contended that there was violation of the mandatory provision of Section 50 of the N.D.P.S. Act. It is in evidence that P.W.5 on arriving room No.115 informed accused 1 and 2 of their right to be searched in the presence of Gazetted Officer or a Magistrate under Section 50 of the N.D.P.S. Act. It is also in evidence that the accused declined the offer and the 1st accused admitted that they were having the narcotic drug and then the 2nd accused voluntarily took out M.O.3(a) bag containing heroin and handed over to P.W.5. In this case there was no seizure of a narcotic on personal search and therefore Section 50 of the N.D.P.S. Act is not attracted. In Bira Kishore Kar v. State of Orissa (2000 (9) SCC 541) it was held that when there was recovery from a plastic bag belonging to the accused on which he was found sitting on railway compartment Section 50 of the N.D.P.S. Act was not applicable. The same view was taken in Saikou Jabbi v. State of Maharashtra (2003 (10) SCALE 426). Even, if it is assumed that Section 50 of the Act is attracted, the evidence on record would show that accused 1 and 2 were appraised and their right to be searched in the presence of a Gazetted officer or a Magistrate. But they declined to exercise that right. Thus there was no violation of the mandatory provisions of the N.D.P.S. Act in these cases. 15. The learned counsel for the appellants lastly contended that the prosecution could not prove in this case whether the alleged contraband under seizure was a small quantity or commercial quantity or quantity in between small quantity and commercial quantity. According to the learned counsel, in the absence of positive proof regarding the quantity of heroin, the court below committed a serious error of law in awarding the sentence regarding the commercial quantity. According to the learned counsel, in the absence of positive proof regarding the quantity of heroin, the court below committed a serious error of law in awarding the sentence regarding the commercial quantity. It is in evidence that the contraband seized in this case is one kilogram of discetyl morphine, which is much above the small quantity for which a lesser punishment is provided by the amended provisions of the N.D.P.S. Act. Therefore, the sentence passed by the lower court also calls for no interference. For the reasons stated above, I am not inclined to interfere with the order of conviction and sentence passed against the appellants. These appeals are groundless and are dismissed.