Ghalib Pasha vs State

C.T. Selvam, J.—The Appellant in Crl. A. (MD) No. 81 of 2008 is the third accused while the Appellants in Crl.A.(MD) No. 256 of 2010 are the accused Nos. 1 and 2 in the case tried by the Special Court for EC and NDPS Act cases, Pudukkottai, in C.C. No. 277 of 2001, wherein under judgment dated 11.01.2008, the Trial Court was pleased to convict all the three accused for the offences u/s 8(c) r/w. 21(c) r/w. 29 of NDPS Act and sentenced them to undergo rigorous imprisonment for 10 years each and to pay a fine of Rs. 1,00,000/- each and in default of fine amount to undergo rigorous imprisonment for six months.

The case of the prosecution is as follows:

2.1. On 09.03.2001, on receipt of information dated 08.03.2001, that the A3-Ghalib Pasha was likely to receive 2 Kg of heroin from two persons staying at Rock View Hotel at Trichy, the complainant proceeded to the hotel with witnesses. The complainant examined A1 Shivsingh who called himself as Ashok Kumar and A2 Rajaram and searched their belongings. Found a suit case with a false bottom containing contraband which answered the test for heroin. The personal search of A2 resulted in the seizure of Ex.P2-hotel receipt dated 12.08.2000 with the name and phone number of the Appellant Ghalib Pasha written on the reverse side. After obtaining warrant from the Deputy Director of Directorate of Revenue Intelligence, the complainant examined the residence of A3 Ghalib Pasha, no narcotic substance was found. The complainant took samples of the contraband and the seized contraband weighed 1.100 kg. The samples of the contraband were marked as M.O.2 and M.O.3 and sent through P.W.2 for examination and the remaining contraband was marked as M.O.4. Ex.P3 is the mahazar prepared while taking samples. Ex.P4 is the authorisation to search the residence of A3-Ghalib Pasha. Ex.P5 is the mahazar prepared while conducting the above search. The complainant recorded the statements of A1 and A2 in which they stated that the Appellant instructed A2 to stay at the hotel for the night and that he would come and receive the contraband personally and that A1 and A2 received the contraband from A4 Dhule Singh. Ex.P6 is the deposition of the A1 given in Hindi and Ex.P7 is the translated copy of the same. Ex.P8 is the another deposition of the A1 given in Hindi and Ex.P9 is the translated copy of the same. Ex.P10 is the deposition of the A2 given in Hindi and Ex.P11 is the translated copy of the same. Ex.P12 is the deposition of the A3. Exs.P13, P14 and P15 are the arrest memos of A1, A2 and A3. The complainant submitted a detailed report to the higher authority u/s 57 of the NDPS Act which is marked as Ex.16. Exs.P17, P18 and P19 are the panchnama prepared to search the residences of A1, A2 and Dhule Singh. Accused and material objects were sent to Court. Ex.P20 is the remand application. Ex.P21 is the requisition letter to analyse the contraband. Evidence of P. Ws.2 and 3 corroborate with the evidence of P.W.1. The Appellant was cited as the third accused among the total four accused charge sheeted u/s 8(c) r/w 21(c) r/w 29 of the NDPS Act (as amended by Act 09/01). A4 was shown absconding in the charge sheet and his case was separated. A1 to A3 were tried together.

2.2. P.W.5-Chemical Examiner received the substance through P.W.2 and analyzed the same in the customs laboratory on 12.03.2001 and certified that the substance contained Di-Actyle Morphin and the report was marked as Ex.P.22. P.W.1 in his deposition stated that "panchanama" Ex.P17 to Ex.P19 was translated version of Ex.P.23 to Ex.P.25. The accused were questioned under 313 Code of Criminal Procedure as to the incriminating circumstances found in the evidence of prosecution witnesses and they denied their complicity in the crime. Though the accused stated that they have witnesses to be examined, they have not examined any witness and also not marked any documents.

Heard Mr. T.K. Sampath, the learned Counsel appearing for the Appellants and Mr. Arulvadivel @ Sekar, the learned Special Public Prosecutor for DRI appearing for the Respondent.

In Crl.A.(MD) No. 256 of 2010, the learned Counsel for the Appellants would restrict himself to the question of sentence. In this regard, he would inform that the Appellants have been arrested on 09.03.2001 and they are in custody from such date. They already have undergone imprisonment for a period of 9 years and 10 months. The learned Counsel for the Appellants would refer this Court to Ex.P.22 the report of the chemical examiner. Such report informs that "The instrument for determination of purity of heroin is at present not in working condition and hence purity could not be determined". This aspect is spoken to and admitted by P.W.5-the Chemical Examiner.

The direct submission that in the absence of the purity of the contraband having been determined no inference of the same being of commercial quantity could be drawn, is to be immediately accepted in the light of the judgment of the Hon''ble Apex Court in Micheal Raj v. Intelligence Officer, Narcotic Control Bureau reported in (2008) 5 Supreme Court Cases 161. Therein the Apex Court has held that it is only the actual content by weight of the offending drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity. The quantity would have to be held to be other than commercial quantity when the prosecution fails to prove possession of commercial quantity. Once we are faced with the position that the contraband held by the accused was not of commercial quantity, the related question that arises would be the nature of sentence to be imposed. In the present case, this Court finds that the period 9 years and 10 months of imprisonment undergone by the Appellants would suffice and holds the same sufficient sentence, both for the substantial offence as also for non payment of fine.

As regards the appeal in Crl.A.(MD) No. 81 of 2008, the position is that accused No. 3/Appellant stands convicted primarily on the strength of confessional statement of A1. Ex.P.12 the statement recorded u/s 67 of NDPS Act from A3 is exculpatory in nature. The statement of A1, Ex.P.7 informs that the contraband carried by him was to be given to A3. It informs of the involvement of A3 in an earlier offence and of A1''s interaction with him in such regard. It also informs of the phone number of A3 and of the recovery of the receipt from A1 in which A3''s telephone number was noted. The statement informed that A3 was to meet A1 at a Hotel room which had been booked at the instance of A3. There is no difficulty in understanding the proposition that the statement of A1, recorded u/s 67 of NDPS Act could be read in evidence against A3 particularly since A1 and A3 were tried at one and the same trial and this brings into play Section 30 of the Evidence Act. However, it would not be possible to convict A3 merely on the strength of such statement without any further corroboration. The corroboration ought to be put up by the prosecution is that Ex.P.1 i.e., the information received, informed the likely receipt of 2 kgs of heroin by A3. Further corroboration is sought from a hotel receipt recovered from A1 wherein the name and telephone number of A3 was written. This is found informed in the confession statement Ex.P.7 of A1. This Court is unable to hold that the offence alleged against A3 sufficiently stands proved. This Court finds that the prosecution has been possessed of the telephone number of A3. The prosecution has not done anything further to satisfy itself that the telephone number informed in Ex.P.7, as also in the receipt was indeed that of A3. The said fact readily would have been verifiable.

In the circumstances, A3, the Appellant in Crl.A.(MD) No. 81 of 2008 is acquitted from of the charges and his appeal is allowed.

The Appellants in Crl.A.(MD) No. 256 of 2010 stand convicted for offence u/s 18(c) r/w. 21(b) r/w 29 of NDPS Act instead of 18(c) r/w. 21(c) r/w. 29 of NDPS Act. This Court has found sufficient the imprisonment of 9 years and 10 months undergone by them both towards substantial sentence and that in lieu of fine. The Appellants shall be released forthwith, unless their detention is required in connection with any other case. Accordingly, this appeal is partly allowed.

The Appellant in Crl.A.(MD) No. 81 of 2008 is acquitted of all charges against him. He shall be released forthwith unless his detention is required in connection with any other case.