Judgment :- (Criminal Appeal against the judgment dated 29.9.2003 made in C.C.No.190 of 2001 on the file of the Special Judge, Additional Special Court for N.D.P.S.Act Cases, Chennai.) The appellant is the accused convicted and sentenced by the Special Court for N.D.P.S. Act Cases, Chennai under Section 8(c) r/w. 21 of the N.D.P.S. Act to undergo R.I. for 10 years and also to pay a fine of Rs.1,00,000/-, in default of payment of fine, to undergo R.I. for one year. 2. Heard Mr.Shanmugavelayutham, learned counsel for the appellant and Mr.R.Dhanapal Raj, Special Public Prosecutor appearing for the respondent. 3. The case of the prosecution may be stated briefly as follows:- (a) P.W.1 and P.W.7 are the Officers of the Directorate of Revenue Intelligence and P.W.3 and P.W.8 are the senior Intelligence Officers of the same Department. On 15.5.2001 at 4.30 P.M., P.W.1 received information regarding transportation of narcotic substance and the same was reduced into writing and sent to the higher official in a sealed cover. He also gave a report under Ex.P-1 to P.W.8, senior Intelligence Officer and in turn, P.W.8, having perused Ex.P-1 affixed his signature and directed P.Ws.1 and 2 and another Intelligence Officer to proceed to the place mentioned in Ex.P-1 and take action in accordance with law. (b) Further as per P.W.8's instruction, P.Ws.1 and 2 and another Officer along with test kits and two independent witnesses went to the intersection of North Usman Road and Coats Road, opposite to Vivek & Co at 5.30 P.M. along with independent witnesses and found the Fiat Car bearing registration No.TN-07-F-0274 in which two persons were sitting in the front seat and after showing the identity Card, P.Ws.1, 2 and 8 enquired both of them and the identity of both of them were fixed by them. (c) When they enquired whether any contraband was present in the vehicle, the occupants of the car at first replied in the negative and later when the search was made by the Officers in the presence of the independent witnesses, P.W.9 and one Chandramohan, P.W.1 found a plastic carry bag on the back side pouch of the front seat containing plastic cover wrapped in Tamil magazine in which a bag containing brown colour powder was seen. P.W.8 took a sample and tested which revealed that the same as morphine, a narcotic contraband. P.W.8 took a sample and tested which revealed that the same as morphine, a narcotic contraband. Ex.P-27 is the chart showing colour for the presence of narcotic drug. When plastic bag was weighed by P.W.8, it was found to be 950 grams and he took two samples, M.Os.4 and 5, each weighing 5 grams and kept them in separate bag and seals were affixed. The remaining material M.O.1 was also packed and sealed separately. The contraband was recovered from the accused and driver Prabhu in the presence of P.Ws.2 and 8 and another independent witness Chandramohan under cover of Ex.P-2 attested by them. The said car was also seized under the said mahazar. The copy of the mahazar was also furnished to the accused as well as the driver of the car. (d) Later, as per the instruction of P.W.8 at 7.30 P.M. on the same day, P.W.1 gave summons Ex.P-3 to the accused under Section 67 of the N.D.P.S. Act to appear before the Officer and his signature obtained in the summons. P.Ws.1, 2 and 8, the D.R.I. Officers reached the D.R.I. office along with the accused and the driver with the material objects. (e) P.Ws.1 and 2 sent Ex.P-4 and P-8, Section 57 report to P.W.8. Then P.W.1 requested the accused to give statement under Section 67 of the N.D.P.S. Act and he gave a confession in writing under Ex.P-5. Similarly, a summon was served on the driver Prabhu and in pursuance of the same he came to the Office of the D.R.I. and gave a voluntary confession under Ex.P-10. On the basis of the statement of the accused under Ex.P-5, on 16.5.2001 at about 8.00 A.M., P.W.1 arrested him after informing him the ground of arrest under Ex.P-6, arrest memo and then he handed over the statement of the accused Ex.P-5 to P.W.8 along with the report Ex.P-7 under Section 57 of the N.D.P.S. Act. (f) In the meantime, P.W.8, directed a search of the residential premises of the accused under Ex.P-13 authorisation under Section 41(2) of the N.D.P.S. Act and on that basis, P.W.4 Intelligence Officer went to the residence of the accused and conducted a search along with other Intelligence Officers and independent witnesses. (f) In the meantime, P.W.8, directed a search of the residential premises of the accused under Ex.P-13 authorisation under Section 41(2) of the N.D.P.S. Act and on that basis, P.W.4 Intelligence Officer went to the residence of the accused and conducted a search along with other Intelligence Officers and independent witnesses. Since no contraband had been seized from the residence, the accused offered them to conduct search in the workshop run by him and then P.W.4 along with other Intelligence Officers went to the workshop and conducted search in the workshop premises and nothing was found there also. Hence, Ex.P-14 mahazar was prepared in the presence of witnesses and P.W.4 submitted Ex.P-15 report under Section 57 to P.W.8. (g) On 18.5.2001, P.W.3 examined the owner of the car by serving summon on him under Ex.P-11 and obtained his written statement under Ex.P-12 and handed over the same to P.W.8. P.W.8 prepared the remand report Ex.P-23 on the basis of Section 57 report by P.W.1 under Ex.P-4 on 16.5.2001 at about 4.30 P.M. P.W.8 submitted the remand report along with the contraband to the Additional Chief Metropolitan Magistrate, Chennai. When the accused was enquired by the Additional Chief Metropolitan Magistrate, the accused replied that no ill-treatment was meted out at the hands of D.R.I. Officers and therefore he was remanded to judicial custody and the contraband along with the car was returned to P.W.8 for safe custody and production before the Special Court. Similarly, P.W.8 sent Ex.P-22 Section 57 report to the Deputy Director of Revenue Intelligence with all documents for verification and also gave a phonogram to the wife of the accused under Ex.P-24 informing the arrest of her husband. (h) On 23.5.2001, P.W.8 brought the property as well as the car to the Special Court and the Special Court in turn sent the samples to the Chemical Analyst at Customs House, Chennai. Then at the request of P.W.8, P.W.7 another Officer handed over the sample to the Chemical Analysis Laboratory along with test memo and later to the Court. P.W.6, Chemical Analyst Gr.I received the sample along with the original of the copy of the letter. P.Ws.5 and 6 verified whether the seal was intact. P.W.5 analysed the samples of the contraband and found Di Acetyl Morphine in it and send Ex.P-16 report in which P.W.6 also signed. P.W.6, Chemical Analyst Gr.I received the sample along with the original of the copy of the letter. P.Ws.5 and 6 verified whether the seal was intact. P.W.5 analysed the samples of the contraband and found Di Acetyl Morphine in it and send Ex.P-16 report in which P.W.6 also signed. Then P.W.8 after completion of the investigation filed Ex.P-26 complaint against the accused under Section 8(c) r/w.21 of the N.D.P.S. Act. 3. When the accused had been questioned under Section 313 Cr.P.C. he denied the incriminating circumstances put to him and submitted that he would file a written statement of defence. 4. He has averred in the statement that on 18.5.2001 at about 7.30 p.m. when he was in his office, two members of Intelligence Office came to his house and enquired about Gunam and thereafter he was brought to the office where he gave the statement under compulsion and torture and therefore he is innocent. 5. On the side of the accused one witness was examined as D.W.1 who is none else than the wife of the accused himself. According to her, on 15.5.2001 at about 7.00 P.M., six persons came to her house and they came from the Intelligence Office enquired her husband about the said Gunam for which she replied that he was not available in the house. Then the Officers took her husband stating that they have to enquire him and send him back to the house, but when enquired later, it was informed that a case has been filed against her husband. 6. The following contentions were put forth by Mr.Shanmugavelayutham, learned counsel appearing for the appellants:- (a) The evidence on record does not reveal that the contraband alleged to have been seized from the accused on 15.5.2001 is the same, which had been produced on 23.5.2001 to the Central Government Laboratory for testing. Hence, according to him, if the nexus between the seizure and the production before the Chemical Analyst is not established by the prosecution evidence, the charge against the accused cannot be held to be proved beyond reasonable doubt. (b) The prosecution has not taken any steps to identify the other persons, who were alleged to have travelled along with the accused in the car wherefrom the contraband had been recovered and therefore a strong suspicion has arisen in this regard. (b) The prosecution has not taken any steps to identify the other persons, who were alleged to have travelled along with the accused in the car wherefrom the contraband had been recovered and therefore a strong suspicion has arisen in this regard. (c) The statement of the accused under Section 67 of the N.D.P.S. Act is not voluntary and therefore on that basis the conviction and sentence rendered by the Court below cannot be sustained. 7. The sheet anchor of the defence put forth by the learned counsel for the appellant is that the delay in despatching the property to the Chemical Examiner is fatal to the prosecution case. Similarly, the sample recovered at the time of seizure of the contraband is not the same as the one tested by the Chemical Examiner. In this context, learned counsel for the appellant has relied on the evidence of P.Ws.1 and 8, the Officers from the Directorate of Revenue Intelligence. While P.W.1 has contended that immediately after seizure of the contraband on 15.5.2001 from the car searched by him and other Officers, two samples of 5 grams each had been taken, packed and sealed separately and the rest of the contraband had been kept intact and sealed separately in the presence of witnesses under cover of mazhar Ex.P-2, P.W.8 has contended that the said samples as well as the remaining contraband were kept under his custody till the same had been produced before the Special Court for N.D.P.S. Act Cases. Hence, on the basis of such evidence, learned counsel for the appellant would contend that till the material recovered had been produced before the Special Court on 23.5.2001, the said Officer was in custody of the same and that therefore there is no explanation offered on the part of the prosecution as to the custody of the property for more than 5 days without producing the same before the concerned Court. 8. 8. Per contra, learned Special Public Prosecutor has pointed out the evidence of P.W.8 to the effect that the contraband as well as the samples noted above and the seized car were produced before the Additional Chief Metropolitan Magistrate, Egmore even on 16.5.2001 at about 4.30 P.M. along with the accused (vide) remand application, Ex.P-23, that the Additional Chief Metropolitan Magistrate remanded the accused after making enquiry with reference to the treatment at the hands of D.R.I. officials, that after signing all the documents and making initials on the material objects, the Magistrate returned the property including the car for safe custody and onward submission to the Special Court for N.D.P.S. Act Cases, and that therefore the seized vehicle and the material objects were kept in the safe custody of the D.R.I. office for onward transmission to the Special Court for N.D.P.S. Act Cases. He has contended further that in view of such evidence, it cannot be said that there was delay in producing the material objects before the concerned Court. 9. Similarly, he has drawn the attention of this Court to Ex.P-19, acknowledgement by the Chemical Examiner to the effect that the samples with intact D.R.I. seal and court seal were received from the D.R.I. officials. Ex.P-17 is the communication addressed by the Special Judge for N.D.P.S. Act Cases to the Deputy Chief Chemist, Central Revenue Control Lab, Customs House, Chennai. Therefore the learned Special Public Prosecutor has further pointed out the remand application Ex.P-23 and the endorsement made therein by the Additional Chief Metropolitan Magistrate for having remanded the accused and entrusted the material objects and the car to the D.R.I. Officials for producing the same before the Special Court for N.D.P.S. Act Cases to emphasis the contention that there was neither delay nor any switch over of the material objects initially produced before the Additional Chief Metropolitan Magistrate while the accused was remanded to custody. Therefore he has submitted that the argument put forth by the learned counsel for the appellant would not stand even a moment's scrutiny in the light of the above of factual aspects as discerned from the evidence of the case. 10. Therefore he has submitted that the argument put forth by the learned counsel for the appellant would not stand even a moment's scrutiny in the light of the above of factual aspects as discerned from the evidence of the case. 10. Though the learned counsel for the appellant has strongly placed reliance on the judgment of the Supreme Court in STATE OF RAJASTHAN v. DAULAT RAM ( AIR 1980 S.C. 1314 ) for the position that samples of the contraband changing hands before reaching the Chemical Analyst would lead to a strong suspicion in favour of the accused, as has been rightly contended by the learned Special Public Prosecutor, the evidence of the case on hand is not in favour of such proposition enunciated in that decision. A careful perusal of the facts of the case cited above would indicate that since the samples involved therein was not proved to have been sealed properly and inasmuch as the same were transmitted through several persons before reaching the Chemical Analyst, it was held that the accused in that case was entitled to the benefit of doubt. But, on the contrary, in this case, as has been discussed above, the evidence categorically shows that the seals of both D.R.I. official and the Court and the initials made by the learned Magistrate were found intact by the Chemical Examiner when the material objects were produced for analysis and therefore I am of the firm view that the ratio laid down in the said decision is not applicable to the facts of this case. It follows that both on factual aspect and in view of the position of law laid down by the Supreme Court, there is no suspicion in the case of the prosecution on the aspect of the matter. Hence this Court is of the considered view that there is no delay in despatching the property and sending it to the Chemical Examiner nor had there been any switching over of the same in the onward transmission from the Court to the Chemical Examiner. For the aforesaid reasons, I have no hesitation to hold that the first contention raised by the learned counsel for the appellant has not been substantiated. 11. For the aforesaid reasons, I have no hesitation to hold that the first contention raised by the learned counsel for the appellant has not been substantiated. 11. The next limb of the argument that has been put forth by the learned counsel for the appellant is that the prosecution has miserably failed to ascertain the identity of other persons who have travelled in the same car along with the accused herein and that therefore a strong suspicion has arisen in the case of the prosecution. In this context, he has relied on the judgment of the Supreme Court in AVTAR SINGH v. STATE OF PUNJAB (2002 S.C.C. (CRI) 1769) in support of such contention. It is no doubt true that in that case, apart from the accused, two other persons who were sitting in the trunk wherefrom the contraband had been seized were not traced by the prosecuting agency and therefore it was held that merely because the accused were sitting on the bags, in the absence of proof, they could not be presumed to be in possession of goods and that therefore it is quite probable that one of the absconding persons could be the custodian of the goods in question. 12. As has been rightly pointed out by the learned Special Public Prosecutor, in this case the accused has candidly admitted his exclusive possession of the contraband in his voluntary confession statement given under Section 67 of the N.D.P.S. Act 1985 to the Revenue Intelligence Officer marked as Ex.P-5. A careful reading of the said statement would disclose that he had not only admitted that the contraband seized from the car was a narcotic substance, but he was also exclusively responsible for transporting the same with the intention to make unlawful gain within a short span of time. It is therefore contended by the learned Special Public Prosecutor and in my opinion rightly that since such statement made by the accused under Section 67 of the N.D.P.S. Act 1985 to the D.R.I. Officials is admissible in evidence and inasmuch as the accused has not implicated any other person in such statement in the commission of the offence, the other absconding persons who travelled in the car could not be said to have had conscious possession of the contraband seized in this case. Hence, this Court is of the considered view that in view of the evidence in the case cited by the learned counsel for the appellant, it was held that the accused therein could not have been in conscious possession of the contraband recovered in that case. But, on the contrary, as has been pointed out above, the conscious possession by the accused herein of the contraband seized from the car has been proved beyond doubt by his own confessional statement Ex.P-5. 13. In this context, it is pertinent to note that the ratio laid down in MADAN LAL AND ANOTHER v. STATE OF H.P. (2003 (7) S.C.C. 465) relied on by the learned Special Public Prosecutor is squarely applicable to this case and the ratio as laid down in paragraph 26 of the judgment reads as under:- "Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similarly is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles." If the evidence in this case is perused in the light of the above principle of law, the accused in this case is found to have admitted his conscious possession of the contraband in his statement made under Section 67 of the N.D.P.S. Act. 14. Further as has been rightly pointed out by the learned Special Public Prosecutor, the contention put forth by the accused in the course of his questioning under Section 313 Cr.P.C. that the confessional statement under Ex.P-5 has been extracted from him under threat and coercion does not find favour with the available evidence on record, as it is clearly apparent from the remand application Ex.P-23 wherein learned Magistrate made endorsement that when the accused was produced for remand, there was no complaint of ill-treatment made against the D.R.I. Officials. Therefore it follows that the contention put forth by the accused at the time of questioning under Section 313 Cr.P.C. is only an after thought and is therefore liable to be rejected as such. 15. Therefore it follows that the contention put forth by the accused at the time of questioning under Section 313 Cr.P.C. is only an after thought and is therefore liable to be rejected as such. 15. Though the learned counsel for the appellant has raised the contention in the grounds of appeal that there was violation of Section 42(2) of the N.D.P.S. Act, he has not pressed the same in his argument. However, the evidence on record has established the fact that the D.R.I. Officer, who recorded the information relating to the transportation of the contraband by the accused in this case, has reduced such information in writing and forwarded a copy thereof to the superior official. It is relevant to note the evidence of P.W.8 that on 15.5.2001 at about 4.45 P.M., P.W.1, another D.R.I. Officer gave report Ex.P-1 stating that the accused is carrying narcotic drug in the car wherefrom the same had been seized subsequently and that he has also countersigned such report before taking further action. Therefore it is apparent that P.W.1 had complied with the provision under Section 42(2) of the N.D.P.S. Act by submitting the report Ex.P-1 to his higher official, P.W.8 in accordance with law. 16. In any view of the matter, this Court is unable to find any merit in the appeal so as to interfere with the judgment of conviction and sentence rendered by the learned Special Judge for N.D.P.S. Act Cases, Chennai and therefore, confirming the same, this Criminal Appeal is dismissed.