STATE THR. NARCOTICS CONTROL BUREAU Vs. YUSUF @ ASIF & ORS.

Tags Acquittal

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 1219 of 2009, Judgment Date: Jan 18, 2016

It is trite law that while reversing the Judgment  the  reasons  given
by the trial court ought to have been taken into  consideration  along  with
the entire evidence in that regard. Same has  not  been  done  by  the  High
Court. As such without commenting on the merits of  the  case  we  find  the
judgment and order of the High Court to be  unsustainable.

NON REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1219 OF 2009

State through Narcotics Control Bureau … Appellant

Vs.

Yusuf @ Asif & Ors. … Respondents

J U D G M E N T

ARUN MISHRA, J.

1. The appeal is directed against the judgment and order passed by the
High Court of Judicature at Madras recording acquittal of respondents
thereby setting aside the judgment and order of conviction for commission
of offence under section 8(c) read with sections 21, 25 and 29 of the
Narcotic Drugs & Psychotropic Substances Act, 1985 and the sentence of 10
years’ rigorous imprisonment and fine of Rs.1 lakh imposed by the Special
Judge for NDPS Act cases, Chennai.

2. According to the prosecution, in a stationed lorry, the appellants
were sitting inside on 28.3.2000 at 2 a.m. Lorry was parked in front of
Puzhal Jail, it was intercepted by Rajasekhar PW-1, Jaberia Nazir PW-2,
P.Saran PW-6, all Intelligence Officers of NCB headed by Mr. K. Raghavan PW-
8, an officer of the Gazetted rank, in the presence of the witnesses –
Naveenraj, PW-5 and Vinobaraj. Two jute hand-bags containing 26 packets
were seized. They were marked as S1 and S2 and seal No.12 was affixed
thereon. Statements under section 67 were recorded. The accused were
arrested and seized property was produced before the Magistrate. P.Saran,
PW-6 deposited the property at the NCB. Godown at about 9.30 p.m. on
29.3.2000 as per receipt Ex. P-1. Property was produced before the NDPS
Court by PW-6 on 3.4.2000. As per orders of the court, it was deposited in
the godown for safe custody. Analyst’s report Ex. P-22 was submitted.

3. Prosecution examined Srinivasan PW-9, who prepared the godown receipt
on 29.3.2000 regarding the contraband though the forwarding memo sent along
with it mentioned that seal No.12 was affixed. However, it was mentioned
due to inadvertence in the godown receipt that it contained seal No.11. The
trial court convicted the respondents. On appeal, the High Court has
acquitted them on the ground that the prosecution has not proved that the
seized articles were in fact sent for chemical analysis due to the
discrepancy in Seal number as on receipt of godown seal number 11 was
mentioned.

4. We have heard learned counsel appearing for the appellant and perused
the record. In our considered opinion, the High Court has not considered
various reasonings given by the trial court in its judgment. The trial
court has given the following reasons with respect to the aforesaid
discrepancy in the seal number:

“10. As per directions of the Court, for receiving articles in godown,
P.W.9 gave Ex.D-1. But P.W.9 Srinivasa wrongly wrote 11 instead of 1. On
31.3.2000 regarding Mohammed Safi accused of the separated case and his
family Ex.P.41 was obtained from the Superintendent Mansore Police. On
that basis, he ordered P.W.6 Saran to enquire into it. Then P.W.6 on that
basis, he ordered P.W.6 Saran to enquire into it. Then P.W.6 gave
complaint in the court for taking action against accused 1 to 4 and two
accused of the separated case under section 89(c) r/w 21, 25, 28 and 29 of
the NDPS Act. Ex. D-1 is the receipt given at the godown on 29.3.2000.
Ex.D-2 is the letter written from the court to the Chemical Laboratory.
Ex.D-3 is the letter written by Gopal Intelligent officer to South Zone
Narcotic Control Bureau. Ex.P.4 is the letter sent by a Chennai Officer to
Chandigarh officer on 1.4.2000. Ex.D-5 is the Fax message sent from N.C.P.
Zonal to Director General, N.C.B. New Delhi E.D.-6 is the letter sent by
from NCD New Delhi to D.B.G.(I).

x x x x x

14. Regarding this, 1999 Supreme Court Cases Criminal Page 95, 2002 (1)
S.B.R. 615 (Supreme Court of India), 2001 (2) C.T.C. Page 764, 2002
Criminal Law Journal 749 were pointed to by the defence side. During
Prosecution argument, prosecution reply that P.Ws.1, 2, 6 and 8 were
authorized officers and that on the basis of written document Ex.1, after
giving information to the superior officer they went to the scene of
occurrence and that when P.W.1 questioned accused 1 he produced M.O.30
Heroin voluntarily from the lorry cabin and that P.W.1 being intelligent
officer, though he need not leak out information he made endorsement on
Ex.P.1 and giving information to Superintendent and got orders from him and
therefore their contention is not acceptable and further they went to the
scene of the information and in the presence of P.W.1, 2, 6 and 8 and
independent witness P.W.5 and witness Vinoba Raj they gave information to
the accused that they were going to inspect the lorry and that they
informed the accused that they were entitled to be inspected either in the
presence of a gazette officer or in the presence of Judicial Magistrate as
per section 50 of the above Act and they obtained Ex.P.2 to 5 wherein
accused stated that they need not do so and that further, articles were
recovered from cabin of the lorry section 50 need not be enforced and the
prosecution witnesses did not transgress provisions of 41(1) and 4a (2) of
the Act or section 50 of the above Act and therefore the contention that
the case is vitiated is not acceptable and that seized articles were marked
as NCB 12 and were handed over as Ex.P.29. Therefore it was subjected to
chemical analysis as per court order and that on the contrary in Ex.D.1,
the mark was wrongly marked as NCB 11, as deposed by P.W.9 and therefore
the articles were sent to chemical laboratory through NCB mark 12 and
Ex.P.22 was obtained stating the articles analyzed was Heroin and that
therefore the contention that wrong materials were sent for chemical
analysis was not acceptable and therefore the citations given by the
defence side are not relevant to fact and in support of their argument,
they pointed out citations (2001) Supreme Page 363, (2001) (3) Crimes page
377, J.T. 2001 S.T.330 and 2000 Supreme Court Cases Criminal Page 506 and
Chennai High Court Criminal Appeal N.898/98 order dated 12.6.2001 and
Notification dated 6/86 F.No.664/75/ Opium-1.11.86 and Notification
No.8/86 dated 1.11.86.

x x x x x

23. Next though the witnesses deposed that they put NCB seal 12 on the
seized articles but as per Ex.P.1 NCB seal 11 was affixed and the before
benefit of doubt be given to the accused and in support of their
contention, they produced the citation 2001 (1) (2) C.P.C. 764 para – 4.
Further 2002 (1) S.B.R. 615 Supreme Court of India Judgment was pointed
out. Arguing on behalf of prosecution, it is pointed out that in the
preparation of Ex.P.6 Mahazar for seizure of articles from the accused, the
NCB seal 12 was affixed and as per Ex.P-19, when P.W.3 obtained statement
he mentioned NCB seal 12 and further when Ex.P-28 was handed over in the
court, NCB seal 12 was affixed. In the annexure attached to it and further
in the Ex.P-30 document requesting to send articles for chemical analysis
it was mentioned and Ex.P-20 in copy of letter to chemical laboratory and
in Ex.P-21 Test Memo, it was mentioned and that in Ex.P-1 it was wrongly
mentioned as NCR seal 11 instead of 12 and that articles sent for chemical
analyzing are not concerned in this case it not acceptable and that further
regarding that D.Ws.8 and 9 gave evidences and therefore the contention
that the seized articles of this case were not sent for chemical analysis
and that Ex.P.22 is not chemical analysis report of the case is not
acceptable the the citation 2001 (2) C.P.C. page 764 and 2002 (1) S.B.R.
615 put forwarded by the defence side is not relevant to this case.
Regarding that perusing Ex.P.6 Mahazar, page 5 it is stated in the Ex.P.6
that NCB seal 12 was affixed and that NCB seal 12 was affixed on Ex.M.O. 1
to 26, 27 and 28.

24. Further, it is said that in Ex.P.28 Annexure, sample NCB was affixed
in it, special court judge ordered to handover Ex.P.1 to 3 and 5 to
intelligent officer and he received the same. Before that as per Ex.P.29.
On 203.2000 night at 21.30 on the basis of forwarding memo No.8/2000 he
handed over in the NCB godown incharge, Southern Zone. As per Ex.P.30 he
requested to send the articles for chemical analysis as per Ex.P-29 for
entrusting the articles, he received receipt Ex.P1 in it on 29.3.2001
receipt No.8/2000 was received as per Ex.P.29 and seal No.12 was mentioned.
But Ex.P-1 it must have been marked as seal No.11 instead of 12. For
that purpose P.W.9 was examined and explanation was obtained. Regarding
the P.W.8 mentioned in his deposition. On the basis of Ex. P-30
requisition as per Ex.P-20 for analysis, court sent articles as per Ex.P-21
test memo, Ex.P-20 and Ex.P-2 are one and the same. It is very clear that
the seal 12 is only for the seized articles of the case. On the contrary,
the court considers that the mark mentioned in Ex.P-1 was wrong. P.W.4
examined the above said articles and gave Ex.P-22 report stating that the
above articles were Heroin regarding the mark 12 in the articles produced
by the accused 1, P.Ws. 1, 2 and independent witnesses 5 and P.W.8 gave
evidence.

x x x x x

27. He sent Ex.P-35 summons to manager of the Hotel where the accused 1
and 2 stayed and obtained Ex.P-36 statement from him. Further he examined
accused – 1 and obtained Ex.P-37 from the accused 1. Further P.W.8
obtained reports from P.W.1, 2 and 6 and as per Ex.P-40 he sent report to
superior officer. As per Ex.P-41 to 43 he obtained report for accused 5
and 6 (separate accused). Receiving the above said reports, P.W.6 Saran
under Section 8(c) r/w 21, 25, 28 and 29 of Narcotic Drugs and Psychotropic
Substances Act 1985. It is decided that from the examination of the above
said prosecution witnesses and on the basis of documents it is established
beyond all reasonable doubts that the accused transported Heroin, narcotic
substance without Government’s permission and possessed the same for the
purpose of selling.”

5. The trial court has given various reasons, considered statement of
witnesses, effect of various documents including of sending them to the
chemical analyst and trial Judge also compared the seals and came to the
conclusion that the same articles which were seized were sent for chemical
examination. The High Court has not considered the other material on record
which according to trial court established identity of sample sent for
chemical examination with the contraband which was seized, and has also
overlooked the effect of forwarding memo to godown which contained seal
No.12, and effect of remanding Magistrate endorsement. Merely because no
departmental action had been taken against PW-9 for mentioning seal No.11
instead of seal No.12 the prosecution case could not have been disbelieved.
The effect of document Ex. D-2 which indicated that samples “are duly
checked and sealed with my office Seal and sent through Shri B.Sharan (PW-
6). … Ex. D-2 contains the facsimile of both seal No.12 affixed by NCB on
the samples at the time of seizure and the facsimile of the Special Judge’s
seal”, has not been considered. The effect of the fact that the trial
Judge saw and compared seals on the samples and contraband at the time of
marking them as MOs. 1 to 29, has not been adverted to by the High Court.
The High Court has also not compared the seals. It was also submitted that
the High Court has not considered that the chemical examiner has stated
that the sample covers contained NCB seal and court seal on contraband and
samples sent for analysis. In the report Ex. P-22 it was mentioned that
the seals in each packet were compared with the respective facsimile given
on the above-referred letter and found to tally. Reasons given in para 25
of the judgment of trial court have not been taken into consideration by
the High Court.

6. It is trite law that while reversing the Judgment the reasons given
by the trial court ought to have been taken into consideration along with
the entire evidence in that regard. Same has not been done by the High
Court. As such without commenting on the merits of the case we find the
judgment and order of the High Court to be unsustainable. Same is hereby
quashed and we remit the case to the High Court to decide the appeal afresh
in accordance with law duly considering the reasoning employed by the trial
court and the entire evidence.

7. Appeal is accordingly disposed of.

…………………………J.
(M.Y. Eqbal)

New Delhi; ………………………..J.
January 18, 2016. (Arun Mishra)

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