Y.V.Nagaraj, M/A 58 Years, v. The State Rep By Its,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.03.2023
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH Crl.A.No.464 of 2017 Y.V.Nagaraj S/o.Y.Subba Rao ... Appellant/Accused Vs.
State by Intelligence Officer, Narcotics Control Bureau, Chennai Zone, Chennai.
(N.C.B F.No.8/1/3/94-NCB/MDS) ... Respondent/Complainant Prayer : Criminal Appeal filed u/s.374 (2) of the Code of Criminal Procedure r/w 36(B) of Narcotic Drugs and Psychotropic Substances Act against the judgment passed by Special Judge, I Additional Special Court for NDPS Act Cases, Chennai - 600 104, in C.C.No.36 of 1995, dated 27.07.2017.
For Appellant : Mr.B.Kumar, Senior counsel for Mr.R.Rajan For Respondent : Mr.N.P.Kumar Special Public Prosecutor 1/14
Crl.A.No.114 of 2018 Intelligence Officer, Narcotic Control Bureau, Chennai Zonal Unit, Chennai.
... Appellant/Complainant Vs.
Y.V.Nagaraj S/o.Late Y.Subba Rao ... Respondent/Accused Prayer : Criminal Appeal filed u/s.377(2) of the Code of Criminal Procedure against the judgment passed by Special Judge, I Additional Special Court for NDPS Act Cases, Chennai - 600 104, in C.C.No.36 of 1995, dated 27.07.2017.
For Appellant : Mr.N.P.Kumar Special Public Prosecutor For Respondent : Mr.B.Kumar, Senior counsel for Mr.R.Rajan Crl.A.No.138 of 2018 Intelligence Officer, Narcotic Control Bureau, Chennai Zonal Unit, Chennai.
... Appellant/Complainant Vs.
1.Y.V.Nagaraj S/o.Late Y.Subba Rao 2/14
2.K.Suresh S/o.Kannan 3.D.Kannan S/o.Duraisamy ... Respondents/Accused Prayer : Criminal Appeal filed u/s.377(2) and 378 of the Code of Criminal Procedure against the judgment passed by Special Judge, I Additional Special Court for NDPS Act Cases, Chennai - 600 104, in C.C.No.36 of 1995, dated 27.07.2017.
For Appellant : Mr.N.P.Kumar Special Public Prosecutor For Respondent : Mr.B.Kumar, Senior counsel for Mr.R.Rajan ***** COMMON JUDGMENT As all these appeals arise out of one and the same judgment, they are considered and decided by this common judgment.
2. Crl.A.No.464 of 2017 has been filed by the appellant [A2] against the judgment and order passed by the Special Judge, I Additional Special Court for NDPS Act Cases, Chennai - 600 104, in C.C.No.36 of 1995, dated 27.07.2017, convicting and sentencing the appellant in the following 3/14
manner:
Sl.
No.
Convicted for offence u/s.
Sentence
1. 8(c) r/w 29 of NDPS Act 10 years rigorous imprisonment and to pay fine of Rs.1,00,000/-, in default, to undergo 2 years imprisonment.
2. 8(c) r/w 20(b)(ii)(B) of NDPS Act 10 years rigorous imprisonment and to pay fine of Rs.1,00,000/-, in default, to undergo 2 years imprisonment.
3. 8(c) r/w 23(b) of NDPS Act 10 years rigorous imprisonment and to pay fine of Rs.1,00,000/-, in default, to undergo 2 years imprisonment.
4. 8(c) r/w 25 of NDPS Act 10 years rigorous imprisonment and to pay fine of Rs.1,00,000/-, in default, to undergo 2 years imprisonment.
The above sentences were ordered to run concurrently.
3. Crl.A.No.114 of 2018 has been filed by Narcotic Control Bureau [hereinafter referred to as 'NCB'] questioning the judgment and order passed by Special Judge, I Additional Special Court for NDPS Act Cases, Chennai - 600 104, in C.C.No.36 of 1995, dated 27.07.2017, insofar as the sentence imposed against the respondent [A2] for various offences and seeking for enhancement of sentence.
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4. Crl.A.No.138 of 2018 has been filed by NCB questioning the judgment and order passed by Special Judge, I Additional Special Court for NDPS Act Cases, Chennai - 600 104, in C.C.No.36 of 1995, dated 27.07.2017, insofar as acquitting A5 and A6 from all charges.
5. The NCB filed a complaint on 08.03.1995 alleging that an information was received by the NCB Zonal Unit at Chennai through the Drug Liaison Officer, Customs and Excise, Mumbai, stating that Israeli Police have seized approximately 2918 kgs. of Hashish. The same was said to be transported through a container which reached Port Ashdode, Israel. The consignment was shipped by M/s.V.J.Exports, which contained 180 cartons of vacuum flasks and it was purportedly shipped to M/s.Import Export International Marketing, Tel Aviv.
6. Pursuant to the information received by the Zonal Unit at Chennai, the officers of the NCB started the investigation and searched various premises and seized the incriminating documents. While undertaking this 5/14
exercise, the NCB found that nearly nine accused persons were involved in trafficking of Hashish and Mandrax tablets in various places in India between the period April'1992 and March'1994 and it was sent to countries like Israel, South Africa, Dubai, etc. For this purpose, fictitious companies were also floated.
7. The further case of the prosecution is that the accused persons entered into a criminal conspiracy and had procured nearly 2918 kgs. of Hashish. The same was stored in a rented premise in Kotturpuram, Chennai. This was packed in the vacuum flasks and was sealed and sent in a consignment to Israel.
8. The complaint was filed by the NCB against the accused persons and the same was taken cognizance by the trial Court u/s.36(A)(d) of the Narcotic Drugs and Psychotropic Substances Act [hereinafter referred to as 'NDPS Act']. The copies of the documents and the complaint were furnished to the accused persons u/s.208 Cr.P.C. On finding prima facie materials, 6/14
charges were framed against A1 u/s.8(c) r/w 29, 8(c) r/w 20(b)(ii), 8(c) r/w 23, 8(c) r/w 25 and 8(c) r/w 27-A of the NDPS Act. Insofar as A2 to A4 are concerned, charges were framed u/s.8(c) r/w 29, 8(c) r/w 20(b)(ii), 8(c) r/w 23 and 8(c) r/w 25 of the NDPS Act. Insofar as A5 and A6 are concerned, charges were framed u/s.8(c) r/w 29 and 8(c) r/w 20(b)(ii) of NDPS Act. When the charges were put to the accused persons, the same were denied.
9. A1 was absconding and hence, the case was split up. A3 and A4 died during the pendency of the trial and hence, the charges against them abate. The case was effectively contested by A2, A5 and A6.
10. The prosecution examined PW-1 to PW-20 and marked Exs.P1 to P199 and identified and marked MO-1 and MO-2. The incriminating evidence that was gathered during the course of trial was put to the appellant [A2] and A5 and A6 when they were questioned u/s.313(1)(b) Cr.P.C. and they denied the same as false.
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11. The trial Court, on considering the facts and circumstances of the case and on appreciation of oral and documentary evidence, came to a conclusion that the prosecution has made out a case beyond reasonable doubts as against A2 and accordingly, convicted and sentenced the appellant [A2] in the manner stated supra. Aggrieved by the same, the appellant[A2] has filed Crl.A.No.464 of 2017 and the NCB has filed Crl.A.No.114 of 2018 seeking for enhancement of sentence. The trial Court also found that the prosecution has failed to establish the charges against A5 and A6 and accordingly, acquitted them from all charges. Challenging the same, the NCB has filed Crl.A.No.138 of 2018.
12. Heard Mr.B.Kumar, learned Senior Counsel, appearing for appellant [A2] and Mr.N.P.Kumar, learned Special Public Prosecutor, appearing for NCB.
13. Learned counsel appearing on either side made elaborate submissions touching upon the merits of the case by pointing out to the 8/14
evidence of the witnesses and the documents that were relied upon by the prosecution.
14. Before delving upon the issues that were raised on either side, this Court wanted to ascertain as to whether the trial Court had dealt with all the issues raised on merits. If the trial Court had dealt with all the issues and had come to a conclusion, this Court would have proceeded further to deal with this appeal on its own merits after re-appreciating the oral and documentary evidence available on record. However, on carefully going through the judgment of the trial Court, it is seen that the trial Court has reached a final conclusion purely based on the confession made by the appellant u/s.67 of the NDPS Act by relying upon the judgment of the Apex Court in Kanhaiyalal v. Union of India [(2008) 4 SCC 668]. Accordingly, the appellant has been convicted and sentenced for various offences under the NDPS Act.
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15. Learned counsel for the appellant [A2] and learned Special Public Prosecutor appearing on behalf of NCB touched upon various documents relied upon by the prosecution and also the oral evidence of the witnesses and had put forth their contentions, apart from the confession recorded from the appellant u/s.67 of the NDPS Act. In fact, the trial Court had also recorded the various contentions that were put forth by learned counsel appearing on either side. However, the judgment confined itself only to the confession recorded u/s.67 of the NDPS Act.
16. There was a subsequent development after the judgment was passed in the year 2017. The Larger Bench of the Apex Court in Tofan Singh v. State of Tamil Nadu [(2021) 4 SCC 1] re-visited the entire law on the issue and in particular, decided the vexed question as to whether a conviction can be based solely on the confession recorded u/s.67 of the NDPS Act and it was answered at paragraph No.158 as follows: "158. We answer the reference by stating:
158.1. That the officers who are invested with powers under Section 53 of the NDPS Act are "police officers" within the meaning of Section 25 of the Evidence Act, as a result of which any 10/14
confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act. 158.2. That a statement recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act."
17. In the light of the above development, the judgment passed by the trial Court purely based on the confession statement by relying upon the judgment in Kanhaiyalal [supra], becomes unsustainable since it was overruled and on this ground alone, the judgment passed by the trial Court is liable to be set aside and the matter has to be necessarily remanded back to the trial Court to deal with all the other issues on merits and render its findings.
18. This Court consciously did not line up the other grounds that were raised on either side touching upon the merits of the case and render any finding since it will have a bearing and it will be a stumbling block for the trial Court to independently deal with the issues on its own merits and in accordance with law.
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In the result, these criminal appeals are disposed of in the following manner:
(a) the judgment and order passed by Special Judge, I Additional Special Court for NDPS Act Cases, Chennai - 600 104, in C.C.No.36 of 1995, dated 27.07.2017, is hereby set aside and the matter is remanded back to the file of the trial Court with a direction to deal with all the issues raised on either side, on its own merits and in accordance with law; (b)the trial Court shall not permit either of the parties to re-open the evidence or file any other applications and the matter is remanded back to the file of the trial Court only with a view to enable the trial Court to hear both sides finally on all the issues with the available materials and deliver the judgment on its own merits and in accordance with law. This exercise shall be completed by the trial Court within a period of four (4) months from the date of receipt of a copy of this order; (c) A5 and A6 are directed to execute a bond u/s.88 Cr.P.C. for a sum of Rs.10,000/- [Rupees Ten Thousand only] without sureties undertaking to appear before the trial Court on all hearing dates. 12/14
(d)the appellant in Crl.A.No.464 of 2017 has undergone sentence for more than eight years and since the judgment of the trial Court is set aside and the matter is remanded back to the file of the trial Court, this Court deems it fit to enlarge the appellant [A2] on bail subject to the following conditions:
(i) the appellant [A2] shall execute a bond for a sum of Rs.10,000/- (Rupees ten thousand only) with two sureties each for a like sum to the satisfaction of the trial Court; (ii) the appellant [A2] shall report before the trial Court on all hearing dates and on every Monday at 10.30 a.m. till the final judgment is passed by the trial Court;
(e) if the appellant [A2], A5 and A6 attempt to delay the proceedings and/or fail to comply with the conditions imposed by this Court, it is left open to the trial Court to insist upon the presence of the appellant [A2], A5 and A6 and remand them to custody as laid down by the Honourable Apex Court in State of Uttar Pradesh v. Shambhu Nath Singh (JT 2001 (4) SC 3191).
N. ANAND VENKATESH, J 13/14
gm (f) the entire original records have been sent to this Court. Since the matter is remanded back to the trial Court, the Registry is directed to immediately send back the records to the trial Court. 29.03.2023 Index : Yes/No, Speaking Order / Non Speaking Order gm To 1.The Special Judge, I Additional Special Court for NDPS Act Cases, Chennai - 600 104 2.The Intelligence Officer, Narcotics Control Bureau, Chennai Zone, Chennai.
3.The Public Prosecutor, High Court, Madras.
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